8-K/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

FORM 8-K/A

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (date of earliest event reported): January 18, 2011

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

(Exact name of registrant as specified in its charter)

Maryland
(State or other jurisdiction of
incorporation or organization) 1-4141
(Commission File Number) 13-1890974
(IRS Employer
Identification No.)

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

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

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:

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

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

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

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

Item 8.01.  Other Events.

This Current Report on Form 8-K/A is filed for the purpose of amending the Current Report on Form 8-K of The Great Atlantic & Pacific Tea Company, Inc. filed with the Securities and Exchange Commission on January 13, 2010 (the “Initial 8-K”).  The exhibits filed omitted certain schedules, annexes and/or exhibits to the filed agreements.  The exhibits to this Current Report are re-filed in their entirety with all schedules, annexes and/or exhibits to such agreements.

On November 17, 2010, the SEC delivered to the Company a comment letter pursuant to a limited review of the Company’s Annual Report on Form 10-K for the fiscal year ended February 27, 2010 (the “Form 10-K”).  In its letter, the SEC requested that the Company re-file certain material agreements previously filed as exhibits with the SEC.  All such agreements are being re-filed with this report.

Item 9.01.  Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
10.1	Investment Agreement, dated as of July 23, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc. and Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP and Yucaipa American Alliance Fund II, LLC, as Investors’ Representative and ther other signatories hereto.
10.2	Investment Agreement, dated as of July 23, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc., Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub, Georg Rudolf Otto Haub and Emil Capital Partners, LLC, as investor’s representative, and the other signatories thereto.
10.3	Agreement of Sales and Leaseback, dated as of November 4, 2010, by and between The Great Atlantic & Pacfic Tea Company, Inc. , Pathmark Stores, Inc., Plainbridge LLC,Upper Darby Stuart, LLC and Lancaster Pike Stuart, LLC, and WE APP I LLC.
10.4	Amended and Restated Credit Agreement dated as of December 27, 2007 among The Great Atlantic & Pacific Tea Company, Inc. and uhe Other Borrowers Party hereto, as Borrowers and the Lenders Party hereto, and Bank of America, N.A. as Administrative Agent and Collateral Agent and JPMorgan Chase Bank, N.A. Wells Fargo Retail Finance, LLC, as co-syndication agents and The CIT Group/Business Credit, Inc., as documentation agent and Banc of America Securities LLC JPMorgan Chase Bank, N.A. as Co-Lead Arrangers.
10.5	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.

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SIGNATURE

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.
Date: January 18, 2011		By:	/s/ Christopher W. McGarry
		Name:	Christopher W. McGarry
		Title:	Senior Vice President and General Counsel

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INDEX TO EXHIBITS

Exhibit No.	Description
10.1	Investment Agreement, dated as of July 23, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc. and Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP and Yucaipa American Alliance Fund II, LLC, as Investors’ Representative and ther other signatories hereto.
10.2	Investment Agreement, dated as of July 23, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc., Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub, Georg Rudolf Otto Haub and Emil Capital Partners, LLC, as investor’s representative, and the other signatories thereto.
10.3	Agreement of Sales and Leaseback, dated as of November 4, 2010, by and between The Great Atlantic & Pacfic Tea Company, Inc. , Pathmark Stores, Inc., Plainbridge LLC,Upper Darby Stuart, LLC and Lancaster Pike Stuart, LLC, and WE APP I LLC.
10.4	Amended and Restated Credit Agreement dated as of December 27, 2007 among The Great Atlantic & Pacific Tea Company, Inc. and uhe Other Borrowers Party hereto, as Borrowers and the Lenders Party hereto, and Bank of America, N.A. as Administrative Agent and Collateral Agent and JPMorgan Chase Bank, N.A. Wells Fargo Retail Finance, LLC, as co-syndication agents and The CIT Group/Business Credit, Inc., as documentation agent and Banc of America Securities LLC JPMorgan Chase Bank, N.A. as Co-Lead Arrangers.
10.5	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.

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EX-10.1

Exhibit 10.1

EXECUTION COPY

INVESTMENT AGREEMENT

By and Among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

and

YUCAIPA AMERICAN ALLIANCE FUND II, LP,

YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP

and

YUCAIPA AMERICAN ALLIANCE FUND II, LLC, as Investors’ Representative

and

the other signatories hereto

Dated as of July 23, 2009

TABLE OF CONTENTS

	Page
ARTICLE I Issuance and Sale of Investor Shares; Closing	11
SECTION 1.01 Issuance and Sale of the Investor Shares	11
SECTION 1.02 Closing Date	11
SECTION 1.03 Transactions To Be Effected at the Closing	11
ARTICLE II Representations and Warranties Relating to the Company	12
SECTION 2.01 Corporate Status	12
SECTION 2.02 Authorization; Noncontravention; No Change of Control	13
SECTION 2.03 Capital Structure	15
SECTION 2.04 Real Property	17
SECTION 2.05 Intellectual Property	18
SECTION 2.06 Environmental Matters	19
SECTION 2.07 Legal Proceedings	20
SECTION 2.08 Taxes	20
SECTION 2.09 Labor	22
SECTION 2.10 Employee Benefit Plans	22
SECTION 2.11 Compliance with Laws	24
SECTION 2.12 SEC Reports and Company Financial Statements	25
SECTION 2.13 Absence of Certain Changes	27
SECTION 2.14 Insurance	29
SECTION 2.15 Private Placement	30
SECTION 2.16 Form S-3 Eligibility	30
SECTION 2.17 Listing and Maintenance Requirements	30
SECTION 2.18 Registration Rights	30
SECTION 2.19 No Restriction on the Ability to Pay Cash Dividends	30
SECTION 2.20 Inventories	30
SECTION 2.21 Contracts	30
ARTICLE III Representations and Warranties of the Investors	31
SECTION 3.01 Corporate Status	31
SECTION 3.02 Authorization; Noncontravention	31
SECTION 3.03 Securities Act	32
SECTION 3.04 Available Funds	33
SECTION 3.05 Ownership of Common Stock	33
ARTICLE IV Covenants	33
SECTION 4.01 Confidentiality	33
SECTION 4.02 Reasonable Best Efforts	33
SECTION 4.03 Fees and Expenses	34
SECTION 4.04 NYSE	34
SECTION 4.05 Use of Proceeds	34
SECTION 4.06 Conduct of Business	34

ARTICLE V Additional Agreements	35
SECTION 5.01 Publicity	35
SECTION 5.02 Transfer Restrictions	35
SECTION 5.03 Purchase for Investment	35
SECTION 5.04 Legend	35
SECTION 5.05 Investors’ Representative	36
SECTION 5.06 Waiver	37
ARTICLE VI Conditions Precedent	37
SECTION 6.01 Conditions to Each Party’s Obligation	37
SECTION 6.02 Conditions to Obligation of the Investors	38
SECTION 6.03 Conditions to Obligation of the Company	39
SECTION 6.04 Satisfaction of Sections 6.01(d) and 6.01(h)	39
SECTION 6.05 Frustration of Closing Condition	40
ARTICLE VII Indemnification	40
SECTION 7.01 Indemnification	40
ARTICLE VIII Termination	42
SECTION 8.01 Termination	42
SECTION 8.02 Effect of Termination	43
ARTICLE IX General Provisions	43
SECTION 9.01 Amendments and Waivers	43
SECTION 9.02 Assignment	44
SECTION 9.03 No Third-Party Beneficiaries	44
SECTION 9.04 Notices	44
SECTION 9.05 Interpretation; Exhibits and Schedules; Certain Definitions	45
SECTION 9.06 Counterparts	54
SECTION 9.07 Entire Agreement	54
SECTION 9.08 Severability	55
SECTION 9.09 Consent to Jurisdiction	55
SECTION 9.10 Governing Law	55
SECTION 9.11 Waiver of Jury Trial	55
SECTION 9.12 No Personal Liability of Partners, Directors, Officers, Owners, Etc.	56
SECTION 9.13 Rights of Holders	56
SECTION 9.14 Adjustment in Share Numbers and Prices	56

Index of Defined Terms

	Location of
Term	Definition
2011 Notes	2.02(d)
ABL Credit Agreement	9.05
Action	9.05
affiliate	9.05
Agreement	Preamble
Amended and Restated Stockholder Agreement	Recital B
Amended and Restated Tengelmann Stockholder Agreement	Recital E
Ancillary Agreements	2.02(a)
Board of Directors	2.12(e)
Business Day	9.05
By-Laws	9.05
Capital Lease Obligation	9.05
Charter	9.05
ChaseMellon Warrants	9.05
Closing	1.02
Closing Date	1.02
Code	9.05
Collective Bargaining Agreement	9.05
Common Stock	2.02(a)
Company	Preamble
Company By-Laws Amendment	9.05
Company Contract	9.05

Company Disclosure Letter	Article II
Company Indemnified Liabilities	7.01(b)
Company Leases	2.04(b)
Company Multiemployer Plans	2.10(b)
Company Plans	9.05
Company Tenant Lease	2.04(b)
Company Title IV Plan	2.10(c)
Confidentiality Agreement	4.01
Contract	9.05
Conversion Stockholder Approval	2.02(a)
Convertible Notes	9.05
Convertible Preferred Articles Supplementary	Recital A
Convertible Preferred Stock	Recital A
Copyrights	9.05
Default	9.05
DOJ	9.05
Encumbrance	9.05

iii

	Location of
Term	Definition
Environment	9.05
Environmental Law	9.05
ERISA	9.05
ERISA Affiliate	9.05
Exchange Act	9.05
Existing Investors	Preamble
Facilities	9.05
FTC	9.05
GAAP	9.05
Governmental Entity	9.05
Hazardous Materials	9.05
HSR Act	9.05
including	9.05
Indebtedness	9.05
Indemnified Liabilities	7.01(c)
Indemnified Party	7.01(d)
Indemnitor	7.01(d)
Investors	Preamble
Investor Indemnified Liabilities	7.01(c)
Investors’ Representative	Preamble
Investor Shares	Recital A
Intellectual Property	9.05
IRS	2.10(d)

	Location of
Term	Definition
Judgment	9.05
Labor Laws	9.05
Laws	9.05
Losses	9.05
Material Adverse Effect	9.05
NYSE	9.05
Offering	1.01
Patents	9.05
PBGC	2.10(c)
Permits	9.05
Permitted Encumbrances	9.05
person	9.05
Purchase Price	1.01
Real Property	9.05
Registered Intellectual Property	9.05
Release	9.05
SEC	9.05
SEC Reports	2.12(a)
Securities Act	9.05
Senior Secured Notes	Recital C
Senior Secured Notes Offering	Recital C
Series B Yucaipa Warrants	9.05

	Location of
Term	Definition
Shares	Recital A
SOX	9.05
Stockholder Agreement	Recital B
subsidiary	9.05
Tax	9.05
Tax Returns	9.05
Tengelmann	Recital E
Tengelmann Initial Shares	Recital D
Tengelmann Investment Agreement	Recital D
Tengelmann Partners	Recital D
Third Party	9.05
Third-Party Claim	7.04(d)
Trade Secrets	9.05
Trademarks	9.05
Trading Market	9.05
Underlying Securities	2.03(a)
Voting Debt	9.05
Voting Stock	9.05
YAAF	Preamble
YAAF Parallel	Preamble

List of Exhibits and Schedules

Exhibit A	-	Convertible Preferred Articles Supplementary
Exhibit B	-	Amended and Restated Stockholder Agreement
Exhibit C	-	Opinion of Counsel
Exhibit D	-	Opinion of Maryland Counsel
Schedule 1	-	Wire Information

INVESTMENT AGREEMENT, dated as of July 23, 2009 (this “Agreement”), among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), and YUCAIPA AMERICAN ALLIANCE FUND II, LP (“YAAF”) and YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP (“YAAF Parallel” and, together with YAAF, the “Investors”), YUCAIPA CORPORATE INITIATIVES FUND I, LP, YUCAIPA AMERICAN ALLIANCE FUND I, LP and YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP (collectively, the “Existing Investors”) (who are parties to this Agreement solely with respect to Section 3.02 and Section 3.05 hereof) and YUCAIPA AMERICAN ALLIANCE FUND II, LLC (the “Investors’ Representative”) (which is a party to this Agreement solely with respect to Section 5.05 hereof).

A.    WHEREAS, the Investors desire to purchase from the Company, and the Company desires to issue and sell to the Investors, pursuant to the terms and conditions set forth in this Agreement, an aggregate of 115,000 shares of the Company’s 8.00% Convertible Preferred Stock due August 1, 2016 (the “Convertible Preferred  Stock”), to be issued on the Closing Date (as defined below), each share with an initial liquidation preference of $1,000 (the “Investor Shares”, and, together with any other shares of Convertible Preferred Stock issued pursuant to the Tengelmann Investment Agreement (as defined below) or issued pursuant to Section 4 of the Convertible Preferred Articles Supplementary (as defined below), the “Shares”), having the powers, preferences and rights and the qualifications, limitations and restrictions as spec ified in the Convertible Preferred Articles Supplementary in the form attached hereto as Exhibit A (the “Convertible Preferred Articles Supplementary”);

B.    WHEREAS, the Company and the Existing Investors are parties to a stockholder agreement dated as of March 4, 2007 (the “Stockholder Agreement”), and on the Closing Date, the Company, the Existing Investors, the Investors’ Representative and the Investors will enter into an amended and restated stockholder agreement in the form attached hereto as Exhibit B (the “Amended and Restated Stockholder Agreement”);

C.    WHEREAS, on the date hereof, the Company will announce and promptly commence a debt offering (the “Senior Secured Notes Offering”) of second-lien senior secured notes (the “Senior Secured Notes”) for an aggregate principal amount of at least $225,000,000;

D.    WHEREAS, simultaneously with the execution of this Agreement, the Company and Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub and Georg Rudolf Otto Haub (collectively, the “Tengelmann Partners”) are entering into an investment agreement, dated as of the date hereof (the “Tengelmann  Investment Agreement”), which sets forth the terms and conditions by which the Tengelmann Partners shall purchase 60,000 shares of the Convertible Preferred Stock, to

be issued on the Closing Date for an aggregate cash purchase price of $60,000,000 (the “Tengelmann Initial Shares”), and, immediately following such purchase, the Tengelmann Partners shall contribute the Tengelmann Initial Shares to Tengelmann (as defined below); and

E. WHEREAS, the Company and Tengelmann WarenhandelsGesellschaft KG, a limited partnership organized under the law of Germany (“Tengelmann”), are parties to a stockholder agreement dated as of March 4, 2007, and on the Closing Date, the Company and Tengelmann will enter into an amended and restated stockholder agreement (the “Amended and Restated Tengelmann Stockholder  Agreement”).

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

Issuance and Sale of Investor Shares; Closing

SECTION 1.01 Issuance and Sale of the Investor Shares. On the terms and subject to the conditions set forth in this Agreement, at the Closing the Company shall issue, sell and deliver in certificated form to the Investors, and the Investors shall purchase from the Company, the Investor Shares for an aggregate cash purchase price of $115,000,000 (the “Purchase Price”), payable as set forth below in Section 1.03. The issuance and sale of the Investor Shares is referred to in this Agreement as the “Offering”.

SECTION 1.02 Closing Date. The closing of the Offering (the “Closing”) shall take place at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, at 10:00 a.m. on the date on which the condition set forth in Section 6.0 1(d) has been satisfied (or, to the extent permitted, waived), or, if on such day any condition set forth in Article VI has not been satisfied (or, to the extent permitted, waived by the party entitled to the benefit thereof), as soon as practicable after all the conditions set forth in Article VI have been satisfied (or, to the extent permitted, waived by the parties entitled to the benefits thereof), or at such other place, time and date as shall be agreed between the Company and the Investors. The date on which the Closing occurs is referred to in this Agreement as the “C losing Date”.

SECTION 1.03 Transactions To Be Effected at the Closing. At the Closing, each of the following shall occur substantially simultaneously and be dependent upon each other:

(a) The Company shall file the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland and deliver to the Investors certificates representing the Investor Shares;

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(b)     The Investors shall deliver to the Company payment, by wire transfer to the bank account of the Company specified on Schedule 1, immediately available funds in an amount equal to the Purchase Price;

(c)     The Company, the Investors, the Existing Investors and the Investors’ Representative shall each execute the Amended and Restated Stockholder Agreement; and

(d) The Company shall deliver to the Investors payment, by wire transfer to the bank account of the Investors specified on Schedule 1, immediately available funds of the amounts owed to the Investors pursuant to Section 4.03.

ARTICLE II

Representations and Warranties

Relating to the Company

Prior to the execution and delivery of this Agreement, the Company has delivered to the Investors a letter, dated as of the date of this Agreement, from the Company to the Investors (the “Company Disclosure Letter”), with numbering corresponding to the sections and subsections of this Article II. Any items disclosed in any provision, section or subsection of the Company Disclosure Letter, with respect to a particular representation or warranty contained in this Article II shall be deemed to be disclosed for purposes of any other representation or warranty contained in this Article II to the extent its relationship thereto is reasonably apparent on its face. Except as set forth in the Company Disclosure Letter and except with respect to Sections 2.01, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.13 (other than the first sentence of Section 2.13) and 2.1 4 only (and not any other sections) as disclosed in the Company’s Annual Report on Form 10-K for the fiscal year ended February 28, 2009 or the Company’s other reports filed with the SEC under Sections 12, 13, 14 or 15(d) of the Exchange Act after February 28, 2009 through and including the date hereof (excluding any forward-looking disclosures contained in such reports under the headings “Risk Factors” or “Cautionary Note” or any similar sections and any other forward looking statement, disclaimer or disclosure that is similarly nonspecific and predictive or forward-looking in nature), the Company represents and warrants to the Investors as follows as of the date of this Agreement (except as of July 20, 2009, as expressly provided in Section 2.03(a)):

SECTION 2.01 Corporate Status. Each of the Company and its material subsidiaries is duly incorporated or otherwise organized, validly existing and in good standing under the Laws of its governing jurisdiction and each (a) has all requisite corporate or other power and authority to carry on its business as it is now being conducted and (b) is duly qualified to do business in each of the jurisdictions in which the ownership, operation or leasing of its assets or the conduct of its business requires it to be so qualified, except where the failure to have such corporate or other power or authority or to be so qualified, has not had and would not reasonably be expected to have a Material Adverse Effect.

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SECTION 2.02 Authorization; Noncontravention; No Change of Control.  (a) Authorization. The Company has all necessary corporate power and authority to execute and deliver this Agreement, the Tengelmann Investment Agreement, the Amended and Restated Stockholder Agreement and the Amended and Restated Tengelmann Stockholder Agreement (collectively, the “Ancillary Agreements”), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The Board of Directors has duly adopted resolutions at a meeting duly called and held (i) adopting, authorizing, approving and declaring this Agreement, the Ancillary Agreements, the classification of the Shares as Convertible Preferred Stock, the issuance of the Investor Shares at Closing, the reservation for issuance of the shares of Convertible Preferre d Stock issued pursuant to Section 4 of the Convertible Preferred Articles Supplementary and the Underlying Securities and the other transactions contemplated hereby and by the Ancillary Agreements on the terms and subject to the conditions set forth herein and therein advisable, fair to and in the best interest of the Company, (ii) adopting the Company By-Laws Amendment and the Convertible Preferred Articles Supplementary, (iii) directing that the proposal for the Conversion Stockholder Approval be submitted to a vote at a meeting of the stockholders of the Company and (iv) recommending that the stockholders of the Company adopt the proposal for the Conversion Stockholder Approval. No “fair price,” “moratorium,” “control share acquisition,” “business combination,” or other similar anti-takeover provision under Maryland or Federal Laws, including Section 3-702 of the Maryland General Corporation Law, apply to this Agreement, the Offering and th e other transactions contemplated hereby, and pursuant to the Company By-Laws Amendment, the Company will be exempt from the application of the Maryland Control Share Acquisition Act (Section 3-701, et seq. of the Maryland General Corporation Law) following the date thereof. The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation by the Company of the transactions contemplated hereby and thereby, including the issuance (or reservation for issuance), sale and delivery of the Shares and the Underlying Securities, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company or its material subsidiaries or vote of holders of any class or series of capital stock of the Company or its material subsidiaries is necessary to authorize this Agreement or the Ancillary Agreements or to consummate the transactions contemplated hereby and thereby, including the issuance (or reservation for iss uance), sale and delivery of the Shares and the Underlying Securities, other than the approval, to the extent and as required under the rules and regulations of the NYSE, of (1) the Shares, when voting together with common stock, par value $1.00 per share, of the Company (“Common  Stock”), becoming entitled to cast the full number of votes on an as-converted basis and (2) the issuance of the full amount Common Stock upon the exercise of conversion rights of the Shares, 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 in accordance with the NYSE rules for stockholder approval (the “Conversion Stockholder Approval”). This Agreement has been duly executed and delivered by the Company and (assuming due authorization, execution and deliv ery by each Investor, each Existing Investor and the Investors’ Representative) constitutes, and

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each Ancillary Agreement, when executed and delivered by the Company (assuming due authorization, execution and delivery by the other parties thereto), will constitute, a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law). The sale and issuance of the Shares at Closing are not, and the issuance of shares of Convertible Preferred Stock pursuant to Section 4 of the Convertible Preferred Articles Supplementary and the issuance of the Underlying Securities will not be, subject to any preemptive rights or rights of first offer.

(b) No Conflict. The Company is not in violation or Default of any provision of its Charter or By-Laws. None of the Company or its material subsidiaries is in breach or Default under any material Collective Bargaining Agreement. The execution, delivery and performance by the Company of this Agreement and the Ancillary Agreements do not, and the consummation of the Offering, the Senior Secured Notes Offering (assuming satisfaction of Sections 6.01(d) and 6.02(h)) and the other transactions contemplated hereby and thereby and compliance with the provisions of this Agreement and the Ancillary Agreements will not, result in a change of control under, or conflict with, or result in any Default under, or give rise to an increase in, or right of termination, cancellation or acceleration of, any obligation or to the loss of a benefit under, or result in the suspension, revocation, imp airment, forfeiture or amendment of any term or provision of or the creation of any Encumbrance upon any of the properties or assets of the Company or any of its material subsidiaries under, or require any consent or waiver under, any provision of (i) the Charter of the Company, the By-Laws of the Company upon effectiveness of the Company By-Laws Amendment or the comparable organizational documents of any of the Company’s subsidiaries, (ii) any material Contract to which the Company or any of its material subsidiaries is a party or by which any of its assets are bound, (iii) any Law, material Judgment or material Permit, in each case applicable to the Company and its material subsidiaries or its assets or (iv) any Collective Bargaining Agreement, Company Multiemployer Plans or Company Plans. No Permit, order or authorization of, or registration, qualification, declaration or filing with, or notice to, any Governmental Entity is required to be obtained or made by or with respect to th e Company or any of its material subsidiaries in connection with the execution, delivery and performance of this Agreement or any of the Ancillary Agreements by the Company or the consummation by the Company of the Offering, the Senior Secured Notes Offering or the other transactions contemplated by this Agreement or the Ancillary Agreements, including the issuance of the Shares, the Underlying Securities and the Senior Secured Notes, except for (A) the filing of the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland, (B) the filing with the FTC and the DOJ of the notification and report form and other information and documents required to be filed pursuant to the HSR Act, which have been completed, (C) the filing with the SEC of such reports, forms, schedules, statements and other documents (including all exhibits) required to be filed by it under the Exchange Act, the Securities Act, state securities Laws or “blue- sky” laws as may be required in connection with this Agreement, the Ancillary

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Agreements and the transactions contemplated hereby and thereby, (D) any filings required under the rules and regulations of the NYSE and (E) such Permits, orders, authorizations, registrations, declarations, filings and notices, the failure of which to be obtained or made would not materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or consummate the transactions contemplated hereby or thereby. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event (whether contingent or otherwise) will (1) result in the payment of any “excess parachute payment” under Section 280G of the Code, (2) entitle any current or former employee, consultant or director of the Company or any of its subsidiaries to any pay ment, (3) increase the amount of compensation or benefits due to any such employee, consultant or director or (4) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit.

(c)       No “Change of Control” (within the meaning of the Company’s 2008 Long Term Incentive and Share Award Plan or the Company’s 1998 Long Term Incentive and Share Award Plan, each as amended from time to time) has at any time occurred or been deemed to have occurred for purposes of such plans or any award granted under such plans, and no award granted under either such plan has become exercisable or vested on an accelerated basis on account of a Change of Control.

(d)     Notwithstanding any terms and obligations included on the face or back or otherwise included on any of the notes representing the Company’s outstanding 9 1/8% Senior Notes due 2011 (the “2011 Notes”), the terms and obligations of any such 2011 Notes include only those terms and obligations included in the 1991 Indenture, as supplemented by the Second Supplemental Indenture, dated as of December 20, 2011, and the Fourth Supplemental Indenture, dated as of August 23, 2005, and do not include any additional terms or obligations that may be included on the face or back or otherwise included on any of the 2011 Notes.

SECTION 2.03 Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of 160,000,000 shares of Common Stock, of which 57,899,318 shares are issued and outstanding as of July 20, 2009, and 3,000,000 shares of preferred stock, no par value per share, of which no shares are issued and outstanding as of July 20, 2009. As of July 20, 2009, there are 2,564,396 shares of Common Stock subject to outstanding options to acquire Common Stock, 4,456,987 shares of Common Stock deliverable pursuant to outstanding restricted stock units, 6,965,858 shares of Common Stock issuable upon the exercise of the Series B Yucaipa Warrants, 6,965,858 shares of Common Stock reserved for issuance upon the exercise of the Series B Yucaipa Warrants, 686,277 shares of Common Stock issuable upon the exercise of the ChaseMellon Warr ants, 686,277 shares of Common Stock reserved for issuance upon the exercise of the ChaseMellon Warrants, 11,278,999 shares of Common Stock issuable upon the conversion of the Convertible Notes, 11,278,999 shares of Common Stock reserved for issuance upon the conversion of the Convertible Notes and no stock equivalent units linked to Common Stock. Each share of Common Stock is duly authorized, validly issued, fully paid and nonassessable. The Shares, and the Common Stock issuable upon conversion of the Investor Shares (the “Underlying Securities”),

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have been duly authorized and reserved, and the Shares will, and upon conversion of the Shares in accordance with the Convertible Preferred Articles Supplementary, the Underlying Securities, will (i) be validly issued, fully paid and nonassessable, (ii) not have been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Maryland General Corporation Law, the Charter or By-Laws of the Company or any Contract to which the Company or any of its material subsidiaries is a party or by which any of its or their respective assets are bound and (iii) be free and clear of all Encumbrances. Other than the Convertible Notes, the Company has no Voting Debt. Except as set forth above, in Section 2.03(a) of the Company Disclosure Letter or as expressly contemplated by this Agreement there ar e no (A) outstanding obligations, options, warrants, convertible securities, exchangeable securities, securities or rights that are linked to the value of the Common Stock or other rights, agreements or commitments relating to the capital stock of the Company or obligating the Company to issue or sell or otherwise transfer shares of capital stock of the Company or any securities convertible into or exchangeable for any shares of capital stock of the Company or any Voting Debt of the Company, (B) outstanding obligations of the Company to repurchase, redeem or otherwise acquire shares of capital stock of the Company, (C) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the Company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party) or (D) rights of first refusal, preemptive rights, subscription rights or any similar rights under any provision of the Maryland General Corporation Law, the Charter or By-Laws or any Contract to which the Company is a party or by which any of its assets are bound. No provision of the Charter or the By-Laws would, directly or indirectly, restrict or impair the ability of the Investors to vote, or otherwise exercise the rights of a stockholder with respect to, the Shares (or any Underlying Securities) or any other shares of Common Stock of the Company that may be acquired or controlled by the Investors, except as expressly set forth in the Convertible Preferred Articles Supplementary. The Company does not have an outstanding “poison pill” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events.

(b) Section 2.03(b) of the Company Disclosure Letter sets forth as of the date hereof a list of all material subsidiaries of the Company, including each such subsidiary’s name, its jurisdiction of incorporation or organization and the percentage of its outstanding capital stock or equity interests owned by the Company or a subsidiary of the Company (as applicable). The shares of outstanding capital stock or equity interests of the subsidiaries of the Company are duly authorized, validly issued, fully paid and nonassessable, and are held of record and beneficially owned by the Company or a subsidiary of the Company (as applicable), free and clear of any Encumbrances other than Permitted Encumbrances. There is no Voting Debt of any subsidiary of the Company. There are no (i) outstanding obligations, options, warrants, convertible securities, exchangeable securities, secu rities or rights that are linked to the value of the Common Stock or other rights, agreements or commitments, in each case, relating to the capital stock of the subsidiaries of the Company or obligating the Company or its subsidiaries to issue or sell or otherwise transfer shares of the capital stock of the

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subsidiaries of the Company or any securities convertible into or exchangeable for any shares of capital stock of the subsidiaries of the Company or any Voting Debt of any subsidiary of the Company, (ii) outstanding obligations of the subsidiaries of the Company to repurchase, redeem or otherwise acquire shares of their respective capital stock, (iii) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the subsidiaries of the Company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party) or (iv) rights of first refusal, preemptive rights, subscription rights or any similar rights under any provision of the Maryland General Corporation Law, the governing documents of any material subsidiary of the Company or any Contract to whic h any material subsidiary of the Company is a party or by which any of their respective assets are bound.

(c)     Other than the subsidiaries of the Company, there are no persons in which any of the Company or its subsidiaries owns any equity, membership, partnership, joint venture or other similar interest.

(d)     The Company or one of its subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable Law) to receive dividends and other distributions on, all capital securities of its subsidiaries as owned by the Company or such subsidiary.

SECTION 2.04 Real Property. (a) The Company or one of its subsidiaries has good and marketable title in fee simple, free and clear of material Encumbrances (other than Permitted Encumbrances), to the real property owned by the Company. Neither the Company nor any of its subsidiaries has received written notice of any pending condemnation proceedings.

(b) Each (x) lease or sublease pursuant to which the Company or any of its subsidiaries holds a leasehold or subleasehold estate or other right to use or occupy any interest in real property (the “Company Leases”) and (y) existing leases, subleases, licenses or other occupancy agreements to which the Company or any of its subsidiaries is a party as landlord or lessor thereunder or by which the Company or any of its subsidiaries is bound as landlord or lessor thereunder, and all amendments, modifications, extensions and supplements thereto (each, a “Company Tenant Lease”) (i) constitutes a valid and binding obligation of the Company or the subsidiary of the Company party thereto; (ii) assuming such lease is a legal, valid and binding obligation of, and enforceable against, the other parties thereto, is enforceable against the Company or the subsidiary of the Company party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity); and (iii) to the Company’s knowledge is a valid and binding obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity), except, with respect to clauses (i) through (iii) above, as

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has not had or would not reasonably be expected to have a Material Adverse Effect. Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) none of the Company or its subsidiaries is in breach or default under any Company Lease and (ii) to the Company’s knowledge, none of the landlords or sublandlords under any Company Lease is in material breach or default of its obligations under such Company Lease. Except as has not had a Material Adverse Effect, the Company and its subsidiaries enjoy peaceful and undisturbed possession under each Company Lease.

(c)     The Real Property and the buildings and other improvements, fixtures, equipment and other property attached, situation or appurtenant thereto, are in good operating condition and repair, subject to normal wear and tear and normal industry practice with respect to maintenance, except as has not or would not reasonably be expected to have a Material Adverse Effect. Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) the present use of the Real Property does not violate any restrictive covenant, municipal by-law or other Law or agreement that in any way restricts, prevents or interferes in any material respect with the continued use of the Real Property for which it is used in the business of the Company and its subsidiaries, other than Permitted Encumbrances (ii) no condemnation, eminent domain or similar proceed ing exists or is pending or, to the Company’s knowledge, is threatened with respect to or that could affect any Real Property and (iii) all Real Property is supplied with utilities and other services necessary for the operation thereof generally consistent with past practices and consistent with the contemplated operation thereof.

(d)     All material fixtures, plants, vehicles, equipment, machinery and other material items of personal property owned by the Company and its material subsidiaries, used in the operation of the Company’s and its material subsidiaries’ business or located on any Real Property or attached thereto, are in good condition and working order, ordinary wear and tear excepted, and are reasonably suitable for the uses for which intended, free from any defects known to the Company, except for such defects or lack of good condition or working order which have not had and would not reasonably be expected to have a Material Adverse Effect.

SECTION 2.05 Intellectual Property. (a) The Company and its subsidiaries own, or are validly licensed or otherwise have the right to use, all Intellectual Property that is necessary for the conduct of the business of the Company and its subsidiaries taken as a whole, except as has not had or would not reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have not entered into any license agreement with any Third Party with respect to the Company’s Registered Intellectual Property.

(b) The business of the Company and its subsidiaries as currently conducted (including the use of the Intellectual Property) does not infringe, misappropriate, conflict with or otherwise violate any person’s Intellectual Property and there is no such claim pending or, to the Company’s knowledge, threatened against any of the Company or its subsidiaries, except where such infringement, misappropriation,

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conflict, violation or claim has not had and would not reasonably be expected to have a Material Adverse Effect.

(c)     To the Company’s knowledge, and except as has not had or would not reasonably be expected to have a Material Adverse Effect, no person is infringing, misappropriating, conflicting with or otherwise violating any material Intellectual Property owned by any of the Company or its subsidiaries, and no such claims are pending or threatened against any person by any of the Company or its subsidiaries.

(d)     All Intellectual Property owned by the Company or its subsidiaries is owned free and clear of all Encumbrances (other than licenses to persons entered into in the ordinary course of business generally consistent with past practice of the Company and its subsidiaries), except for Permitted Encumbrances or where such Encumbrances have not had and would not reasonably be expected to have a Material Adverse Effect.

SECTION 2.06 Environmental Matters. (a) The Company and its subsidiaries have obtained all Permits that are required under any Environmental Law for the operation of the business of the Company and its subsidiaries as currently being conducted and their current use and operation of the Real Property, and all such Permits are in full force and effect, other than any failure to obtain or maintain such Permits in full force and effect which has had and would not reasonably be expected to have a Material Adverse Effect.

(b)     The Company and its subsidiaries have operated and are operating the business of the Company and its subsidiaries, and the Real Property and other assets of the Company and its subsidiaries are in compliance with Environmental Laws, other than any non-compliance which in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect.

(c)     Except as has not had and would not reasonably be expected to have a Material Adverse Effect, (i) there has been no Release of any Hazardous Materials by the Company or any of its subsidiaries at, on, under or from the Real Property or any other location, (ii) Real Property has not been used for the deposit of Hazardous Materials and (iii) neither the Company nor any of its subsidiaries has disposed of, arranged for treatment or disposal of, or arranged for the transportation for treatment or disposal of, any Hazardous Materials at any Third Party location.

(d)     (i) None of the Company or its subsidiaries has received any written notice, demand letter, claim or order alleging a violation of, or liability under, any Environmental Law and (ii) none of the Company or its subsidiaries is party to any pending Action, decree or injunction alleging liability under or violation of any Environmental Law, except in each case of (i) or (ii) of this Section 2.06(d), if adversely determined against the Company, would not have or would not reasonably be expected to have a Material Adverse Effect.

(e)     Except as has not had and would not reasonably be expected to have a Material Adverse Effect, there are no storage tanks, sumps or other similar vessels,

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asbestos-containing materials or polychlorinated biphenyls located on, at or under any Real Property or at, on or in any structures, Facilities or equipment at the Real Property.

SECTION 2.07 Legal Proceedings. There are no Actions pending or, to the Company’s knowledge, threatened in writing (and, in either case, not withdrawn), against the Company or any of its subsidiaries, which, if adversely determined, would have or would reasonably be expected to have a Material Adverse Effect. There are no Actions pending or, to the Company’s knowledge, threatened in writing (and, in either case, not withdrawn) against the Company or any of its subsidiaries which, if adversely determined, would materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or challenge the validity or enforceability of this Agreement or any Ancillary Agreement or seek to enjoin or prohibit the consummation of the transactions contemplated hereby or thereby. None of the Company or any of its subsidiaries is in defaul t with respect to any material Judgment or subject to any Judgment of over $1,000,000, which has had or would reasonably be expected to have a Material Adverse Effect or would materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or consummate the transactions contemplated hereby or thereby.

SECTION 2.08 Taxes. (a) Except as has not had and would not reasonably be expected to have a Material Adverse Effect, (i) the Company and each of its subsidiaries have timely filed with the appropriate taxing authority all material Tax Returns required to be filed, taking into account valid extensions; (ii) all such Tax Returns are complete and accurate in all material respects; (iii) all Taxes due and owing by the Company and each of its subsidiaries (whether or not shown on any Tax Return) have been paid; and (iv) neither the Company nor any of its subsidiaries has been informed in writing by a Governmental Entity in a jurisdiction where the Company or any of its subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

(b)     The unpaid Taxes of the Company and its subsidiaries did not, as of the dates of the financial statements contained in the most recent SEC Report filed with the SEC prior to the date of this Agreement, exceed by a material amount the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) included in the balance sheets contained in such financial statements. Since the date of the financial statements contained in the most recent SEC Report filed with the SEC prior to the date of this Agreement, neither the Company nor any of its subsidiaries has incurred any material liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and past practice of the Company and its subsidiaries in filing their Tax Returns.

(c)     As of the date hereof, no deficiencies for Taxes against the Company or any of its subsidiaries in excess of $100,000 individually or $1,000,000 in the aggregate have been claimed or assessed in writing by a Governmental Entity that have not been settled or resolved. There are no currently ongoing, pending or, to the Company’s knowledge, threatened audits, assessments or other Actions for or relating to any liability in respect of Taxes of the Company or any of its subsidiaries. The Company

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has made available to the Investors or representatives of the Investors complete and accurate copies of all Federal income and material state, local and foreign income, franchise and sales and use Tax Returns of each of the Company and its subsidiaries and their predecessors for the years ended on or after February 23, 2008 and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by the Company or any of its subsidiaries or any predecessors since February 23, 2008 with respect to any material Tax. Other than any waivers or extensions granted in the ordinary course of business after the date of this Agreement and prior to the Closing Date, neither the Company, its subsidiaries nor any of their respective predecessors has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessmen t or deficiency (other than as a result of a valid extension of time to file a Tax Return).

(d)     There are no material Encumbrances for Taxes on any assets of the Company or any of its subsidiaries, other than Encumbrances in respect of property taxes not yet due and payable.

(e)     Other than customary gross-up, tax escalation or similar provisions in financing and commercial Contracts entered into in the ordinary course of business, there are no Tax sharing agreements or similar arrangements (including indemnity arrangements) with respect to or involving the Company or any of its subsidiaries other than agreements solely between the Company or its subsidiaries, and, after the Closing Date, neither the Company nor any of its subsidiaries shall be bound by any such Tax sharing agreements or similar arrangements or have any liability thereunder.

(f)     Neither the Company nor any of its subsidiaries has been a member of any affiliated group filing a consolidated Federal income Tax Return other than a group the common parent of which is the Company. Except pursuant to customary gross-up, tax escalation or similar provisions in financing and commercial Contracts entered into in the ordinary course of business, neither the Company nor any of its subsidiaries has any actual or potential liability for the Taxes of any person (other than Taxes of the Company and its subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state or local Law), as a transferee or successor, by Contract, or otherwise.

(g)     The Company and each of its subsidiaries have timely withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

(h)     Neither the Company nor any of its subsidiaries has entered into any transaction identified as a “listed transaction” for purposes of Treasury Regulations Section 1.601 1-4(b)(2).

(i)    Neither the Company nor any of its subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period or portion thereof ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period beginning on or

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prior to the Closing Date under Section 48 1(c) of the Code (or any similar provision of state, local or foreign Law) or (ii) agreement with a taxing authority relating to Taxes.

(j)    None of the assets of the Company (a) is “tax-exempt use property” (as defined in Section 168(h)(1) of the Code), (b) may be treated as owned by any other person pursuant to Section 1 68(f)(8) of the Internal Revenue Code of 1954 (as in effect immediately prior to the enactment of the Tax Reform Act of 1986), (c) is property used predominantly outside the United States within the meaning of proposed Treasury Regulations Section 1.1 68-2(g)(5) or (d) is “tax exempt” and financed property within the meaning of Section 168(g)(5) of the Code.

(k)     Neither the Company nor any of its subsidiaries has distributed the stock of any corporation in a transaction satisfying the requirements of Section 355 of the Code since December 31, 2006, and neither the stock of the Company nor the stock of any of its subsidiaries has been distributed in a transaction satisfying the requirements of Section 355 of the Code since December 31, 2006.

SECTION 2.09 Labor. No Collective Bargaining Agreement currently is being negotiated. None of the Company or its subsidiaries has any obligation to inform or consult with any employees or their representatives in respect of the transactions contemplated hereby under the terms of any Collective Bargaining Agreement. Since February 28, 2008, there has not been any material work stoppage, slowdown, lockout, employee strike or, to the Company’s knowledge, labor union organizing activity involving any of the Company or its subsidiaries and, to the Company’s knowledge, none of the foregoing or any labor dispute or Action that has had or would reasonably be expected to have a Material Adverse Effect has been threatened. The Company and its subsidiaries are operating the business of the Company and its subsidiaries in compliance with all Labor Laws other than non-compliance which has not had and would not reasonably be expected to have a Material Adverse Effect. As of the date hereof, to the Company’s knowledge, there are no ongoing union certification drives or pending proceedings for certifying a union with respect to employees of any of the Company or its subsidiaries.

SECTION 2.10 Employee Benefit Plans. (a) Each Company Plan and, to the Company’s knowledge, each Company Multiemployer Plan has been operated and administered in all material respects in accordance with its terms and the terms of all Collective Bargaining Agreements and any other labor-related agreements with any labor union or labor organization applicable to employees of the Company or any of its subsidiaries and the requirements of all applicable Laws, including ERISA and the Code. As of the date of this Agreement, no Action is pending or, to the Company’s knowledge, threatened with respect to any Company Plan (other than claims for benefits in the ordinary course) that would result in any material liability to the Company, its subsidiaries or any Company Plan fiduciary and, to the Company’s knowledge, no fact or event exists that would give rise to any such Action. As of the date of this Agreement, to the Company’s knowledge, (i) no Action is pending or threatened with respect to any Company Multiemployer Plan (other than claims for benefits in the ordinary course) that

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would result in any material liability to the Company and (ii) no fact or event exists that would give rise to any such Action.

(b)     No withdrawal liability has been incurred under Title IV of ERISA by the Company or any of its ERISA Affiliates with respect to any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) which is or has been contributed to by the Company or any of its ERISA Affiliates at any time during the six-year period ending on the date of this Agreement or as to which the Company or any of its ERISA Affiliates has any liability (the “Company Multiemployer Plans”), and no such liability would be incurred if the Company or any of its ERISA Affiliates were to withdraw from any Company Multiemployer Plan in a complete or partial withdrawal. The Company has not agreed with any person to be responsible for any liability under Title IV of ERISA with respect to any multiemployer plan within the meaning of Section 3(37) or 40 01(a)(3) of ERISA.

(c)     With respect to any Company Plan which is subject to Part 3 of Subtitle B of Title I or to Title IV of ERISA (a “Company Title IV Plan”): (i) there is no lien under Section 412(n) of the Code; (ii) no liability (other than liability for premiums) to the Pension Benefit Guaranty Corporation, (the “PBGC”) has been incurred and all premiums required to be paid to the PBGC have been paid by or on behalf of such Company Title IV Plan; (iii) the assets of each Company Title IV Plan equal or exceed the benefit liabilities of such Company Title IV Plan determined on a termination basis; and (iv) as of the date hereof, the Company has received no actual notice from the PBGC that an event or condition exists which (A) would constitute grounds for termination of such Company Title IV Plan by the PBGC or (B) has caused a partial or complete termination of such Company Title IV Plan.

(d)     All contributions to Company Plans and, to the Company’s knowledge, the Company Multiemployer Plans required to be made by applicable Law or the terms of the applicable Company Plan or Company Multiemployer Plan have been timely made. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination letter from the United States Internal Revenue Service (“IRS”) which has not been revoked (or, in either case, the Company has timely applied for same or will do so) and each trust established in connection with any Company Plan which is intended to be exempt from Federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS which has not been revoked that it is so exempt, and, to the Company’s knowledge, no fact or event has occurred since the date of such determination letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Company Plan or the exempt status of any such trust. To the Company’s knowledge, each Company Multiemployer Plan intended to be qualified under Section 401(a) of the Code is so qualified.

(e)     Except as would not reasonably be expected to result in material liability, neither the Company nor any of its ERISA Affiliates, and to the Company’s knowledge no other person, has engaged in any transaction or acted or failed to act in any

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manner that would subject the Company or any of its ERISA Affiliates to any liability for breach of fiduciary duty under ERISA.

(f)     Except as would not reasonably be expected to result in material liability, neither the Company nor any of its ERISA Affiliates and, to the Company’s knowledge, no other person has engaged in any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) or (d) of the Code.

(g)     As of the date hereof, (i) all of the stock options issued by the Company that vest on or after January 1, 2005 were issued with an exercise price no less than the fair market value of the underlying stock at the actual date of grant or the Business Day immediately preceding the actual date of grant, (ii) no shares of restricted Common Stock provide for a deferral opportunity beyond vesting, and (iii) no restricted share units or other compensatory equity awards issued by the Company constitute “nonqualified deferred compensation” within the meaning of Section 409A(d)(1) of the Code.

(h)     Except as would not reasonably be expected to result in material liability, the Company and its subsidiaries have no obligations, whether under Company Plans, Company Multiemployer Plans or otherwise, to provide medical, health or life insurance or any other welfare-type benefits for current or future retired or terminated employees of the Company or its subsidiaries or their spouses or dependents (other than in accordance with Part 6 of Title I of ERISA or Code Section 4980B).

(i)    Each Company Plan that provides for “nonqualified deferred compensation” within the meaning of Section 409A(d)(1) of the Code, and any award thereunder, in each case that is subject to Section 409A of the Code, (i) has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of Section 409A of the Code and the Treasury Regulations and other official guidance issued thereunder, and (ii) has been maintained in compliance with Section 409A of the Code and the final Treasury Regulations and all subsequent official guidance issued thereunder.

SECTION 2.11 Compliance with Laws. Each of the Company and its subsidiaries is operating its business in compliance with all applicable Laws (including any zoning or building ordinance, code or approval), except to the extent any noncompliance with such Laws has not had and would not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, neither the Company nor any of its subsidiaries is being investigated with respect to, or is subject to a pending threat to be charged with or given notice of any material violation of, any applicable Law. All Permits required to conduct the business of the Company and its subsidiaries as currently conducted have been obtained by one or more of the Company or its subsidiaries and all such Permits are in full force and effect and the business of the Company and its subsidiaries is being operated in compliance ther ewith, except for such Permits the failure of which to possess or be in full force and effect or to be complied with has not had and

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would not reasonably be expected to have a Material Adverse Effect (except that this sentence shall not apply to any Permits which are covered by Section 2.06).

SECTION 2.12 SEC Reports and Company Financial Statements. (a) The Company has timely filed all forms, reports, schedules, statements and other documents (including all exhibits) required to be filed by it with the SEC since February 23, 2008 (the “SEC Reports”). The SEC Reports (i) were prepared in all material respects in accordance with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, and (ii) did not at the time they were filed (or, in the case of a registration statement, as of its most recent effective date) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No subsidiary of the Company is a registrant with the SEC.

(b)     Each of the consolidated financial statements (including, in each case, any notes thereto) included or incorporated by reference in the SEC Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated subsidiaries as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein.

(c)     Except as set forth on or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of February 28, 2009 included in the “Fiscal 2008 Annual Report to Stockholders” attached as an exhibit to the Company’s Form 10-K for the year ended February 28, 2009 including the notes thereto, none of the Company or any of its consolidated subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except for liabilities or obligations (i) incurred since February 28, 2009 in the ordinary course of business and consistent with past practice, or (ii) that are less than $5,000,000 in the aggregate.

(d) Neither the Company nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract relating to any transaction or relationship between or among the Company and any of its subsidiaries, on the one hand, and any unconsolidated affiliate of the Company or any of its subsidiaries, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its subsidiaries in the Company’s or such subsidiary’s audited financial statements or o ther SEC Reports.

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(e)     The audit committee of the Board of Directors of the Company (the “Board of Directors”) has established “whistleblower” procedures that meet the requirements of Exchange Act Rule 1 0A-3. Neither the Company nor any subsidiary has received any “complaints” (within the meaning of Exchange Act Rule 10A-3) in respect of any accounting, internal accounting controls or auditing matters. To the Company’s knowledge, no complaint seeking relief under Section 806 of SOX has been filed with the United States Secretary of Labor and no employee has threatened to file any such complaint.

(f)     The Company has made all certifications and statements required by Sections 302 and 906 of SOX and the related rules and regulations promulgated thereunder with respect to the SEC Reports. The Company and its subsidiaries maintain a system of “disclosure controls and procedures” (as defined in Rule 1 3a- 15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is, in all material respects, recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. Since February&n bsp;23, 2008, the Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

(g) The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply in all material respects with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as would not have a Material Adverse Effect, the Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are reco rded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Board of Directors (A) any significant deficiencies and material weaknesses in the design or operation of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves mana gement or other employees who have a significant role in the Company’s internal controls over financial reporting.

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(h)     The Company is in material compliance in all material respects with applicable requirements of SOX and applicable rules and regulations promulgated by the SEC thereunder. To the Company’s knowledge, there is no reason that its outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of SOX, without qualification, when next due.

(i)    Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009, none of the officers, directors, employees or related persons (as defined in Regulation S-K Item 404) of the Company is presently a party to any transaction with the Company or any of its subsidiaries that would be required to be reported on Form 10-K by Item 13 thereof pursuant to Regulation S-K Item 404 (other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director, employee or related person or, to the Company’s knowledge, any corporation, partnership, trust or other entity in which any such officer, director, e mployee or related person has a substantial interest or is an officer, director, trustee or partner.

(j)    Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009 and pursuant to the Ancillary Agreements, neither Tengelmann nor any of its officers, directors, employees or affiliates is presently a party to any transaction with the Company or any of its material subsidiaries, including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from Tengelmann or any of its officers, directors, employees or affiliates or, to the Company’s knowledge, any corporation, partnership, trust or other entity in which Tengelmann or any of its officers, directors, employees or affiliates has a substantial interest or is an officer, director, trustee or partner.

(k)     Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009, neither the Company nor any of its subsidiaries has any outstanding Indebtedness, other than intercompany loans (among wholly owned subsidiaries) and other than Indebtedness incurred in the ordinary course of business and consistent with past practice since February 28, 2009 in an aggregate principal amount which does not exceed $5,000,000. Neither the Company nor any of its material subsidiaries is, immediately prior to this Agreement, or will be, at the time of the Closing after giving effect thereto, in Default in the payment of any Indebtedness or in breach or Default under any Contract evidencing or relating to its material Indebtedness, including the resolutions adopted by the Pricing Committee of the Board of Directors on August 4, 1999, relating to t he Company’s 9 3/8% Senior Quarterly Interest Bonds due 2039, and the exhibits thereto, or under any mortgage, deed of trust, security agreement or lease to which it is a party.

SECTION 2.13 Absence of Certain Changes. Since February 28, 2009 through the date hereof, there has not occurred any change, event or circumstance that

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has had or would be reasonably expected to have a Material Adverse Effect. Except as expressly contemplated by this Agreement or the Ancillary Agreements, since February 28, 2009 through the date hereof, the Company and its subsidiaries have conducted their business in the ordinary course generally consistent with past practice in all material respects, and none of the Company or its subsidiaries has:

(a)     amended its Charter, By-Laws or other organizational documents;

(b)     adopted a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization;

(c)     (i) issued, sold, transferred or otherwise disposed of any shares of its capital stock, Voting Debt of the Company or other voting securities or any securities convertible into or exchangeable for any of the foregoing, (ii) granted or issued any options, warrants, securities or rights that are linked to the value of the Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, (iii) split, combined, subdivided or reclassified any shares of its capital stock, (iv) declared, set aside or paid any dividend or other distribution with respect to any shares of its capital stock or (v) redeemed, purchased or otherwise acquired any shares of its capital stock or any rights, warrants or options to acquire any such shares or effected any reduction in capital, except (with respect to clauses (i) through (v) above) for: (A) issuances of capital stock of the Company’s subsidiaries to the Company or a wholly owned subsidiary of the Company, (B) issuances of shares of Common Stock upon exercise of employee stock options or upon vesting of restricted stock units or restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing, (C) grants made pursuant to Company Plans (D) dividends or other distributions by any subsidiary of the Company to the Company or a wholly owned subsidiary of the Company and (E) issuances pursuant to any share lending agreement, hedging agreement, and any other documents related thereto;

(d)     issued any note, bond or other debt security or right to acquire any debt security, incurred or guaranteed any Indebtedness or entered into any “keep well” or other agreement to maintain the financial condition of another person or other arrangement having the economic effect of any of the foregoing, other than (i) trade or standby letters of credit in the ordinary course of business; (ii) in connection with new store openings or other actions in the ordinary course of business; (iii) pursuant to any existing credit agreement and other existing Contracts regarding other Indebtedness; (iv) issuances, incurrences or guarantees by the Company to any wholly owned subsidiary of the Company or by a subsidiary to the Company or any other wholly owned subsidiary of the Company; (v) incurrences or guarantees of store leases; (vi) other guarantees required under any agreements or commitments existing as of the date of this Agreement; (vii) in connection with any equipment leases and capital leases; (viii) in connection with any insurance premium financing in the ordinary course of business generally consistent with past practice; or (ix) guarantees of any Indebtedness permitted by the foregoing clauses (i) through (viii);

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(e) except as required under a Company Plan or Collective Bargaining Agreement or in the ordinary course of business generally consistent with past practice, (i) increased or accelerated the benefits under any Company Plan or Collective Bargaining Agreement, (ii) increased the compensation or benefits payable to any current or former director, officer, employee or consultant of the Company or its subsidiaries, (iii) granted any rights to severance, change in control or termination pay to, or entered into any employment, severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its subsidiaries, or (iv) taken any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan;

(f) entered into or consummated any transaction involving the acquisition (including, by merger, consolidation or acquisition of the business, stock or all or substantially all of the assets or other business combination) of any other person for consideration to such person in excess of $20,000,000 in the aggregate (other than purchases of inventory or acquisitions of real property, fixtures and equipment for the opening of any Facility in the ordinary course of business generally consistent with past practice);

(g)     settled any Action or threatened any Action involving a payment by the Company or any of its subsidiaries in excess of $1,000,000;

(h)     changed any of its material accounting policies or practices, except as required as a result of a change in GAAP or the rules and regulations of the SEC;

(i) (i) made, changed or revoked any material election in respect of Taxes, (ii) adopted or changed any material accounting method in respect of Taxes, (iii) entered into any Tax allocation agreement, Tax-sharing agreement, Tax indemnity agreement or closing agreement, (iv) settled or compromised any material claim, notice, audit report or assessment in respect of Taxes or (v) surrendered any right to claim a material refund of Taxes; or

(j) agreed or committed by Contract or otherwise to do any of the foregoing.

SECTION 2.14 Insurance. Each of the Company and its material subsidiaries maintains, with reputable insurers or through self-insurance, insurance in such amounts, including deductible arrangements, and of such a character as is customary for companies engaged in the same or similar business. All policies of title, fire, liability, casualty, business interruption, workers’ compensation and other forms of insurance including directors and officers insurance held by the Company and its subsidiaries as of the date hereof, are in full force and effect in accordance with their terms. Neither the Company nor any of its subsidiaries is in Default under any provisions of any such policy of insurance and neither the Company nor any of its subsidiaries has received notice of cancellation of any such insurance except as has not had and would not reasonably be expected to have a Material A dverse Effect.

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SECTION 2.15 Private Placement. Assuming that the representations of the Investors set forth in Articles III and V are true and correct, the offer, sale, and issuance of the Shares in conformity with the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act, and applicable state securities laws.

SECTION 2.16 Form S-3 Eligibility. The Company meets the eligibility requirements of General Instruction I to Form S-3 promulgated under the Securities Act.

SECTION 2.17 Listing and Maintenance Requirements. The Company has not, in the 12 months preceding the date hereof, received notice (written or oral) from any Trading Market on which any of its securities is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is in compliance with all such listing and maintenance requirements.

SECTION 2.18 Registration Rights. The Company has not granted or agreed to grant, and is not under any obligation to provide, any rights (including “piggyback” registration rights) to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently, except for those contained in the Amended and Restated Stockholder Agreement and the Amended and Restated Tengelmann Stockholder Agreement.

SECTION 2.19 No Restriction on the Ability to Pay Cash Dividends.  Except for the ABL Credit Agreement, neither the Company nor any of its material subsidiaries is a party to any contract, agreement, arrangement or other understanding, oral or written, express or implied, and is not subject to any provisions in its Charter or By-Laws or other governing documents or resolutions of the Board of Directors, that could restrict, limit, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Shares in the amounts contemplated by the Convertible Preferred Articles Supplementary.

SECTION 2.20 Inventories. Except as would not have a Material Adverse Effect, all items of inventory reflected on the latest balance sheet included in the Company’s SEC Reports (i) were acquired in the ordinary course of business generally consistent with past practice and (ii) were usable and saleable in the ordinary course of business generally consistent with past practice, except for normal shrinkage, spoilage and obsolescence.

SECTION 2.21 Contracts. (a) Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) each Company Contract, assuming such Company Contract is a legal, valid and binding obligation of and enforceable against the other parties thereto in accordance with its terms, constitutes a valid and binding obligation of the Company or the subsidiary of the Company party thereto and is enforceable against the Company or such subsidiary, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity

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(regardless of whether such enforceability is considered in a proceeding at law or in equity) and (ii) each Company Contract, to the Company’s knowledge, is a valid, binding and enforceable obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(b) Except as have not had or would not reasonably be expected to have a Material Adverse Effect, none of the Company or its subsidiaries and, to the Company’s knowledge, no other party to a Company Contract (other than any Collective Bargaining Agreement) is in breach or Default under any Company Contract (other than any Collective Bargaining Agreement). This subsection shall not apply to any Contract evidencing Indebtedness, which is covered by Section 2.12(k), or any Collective Bargaining Agreement, which is covered by Section 2.02(b).

ARTICLE III

Representations and Warranties of the Investors

Each Investor and, as applicable, the Investor’s Representative, and solely with respect to Section 3.02(a) and 3.05, the Existing Investors, severally but not jointly, hereby represents and warrants to the Company, as of the date of this Agreement, as follows:

SECTION 3.01 Corporate Status. Such Investor and the Investors’ Representative is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and has all requisite power and authority to carry on its business as it is now being conducted.

SECTION 3.02 Authorization; Noncontravention. (a) Authorization.  Such Investor, such Existing Investor and the Investors’ Representative have all necessary power and authority to execute and deliver this Agreement and the Amended and Restated Stockholder Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, including the authorization by the Investors and the Existing Investors of the Investors’ Representative to take actions on their behalf as set forth in Section 5.05 of this Agreement and Section 2.06 of the Amended and Restated Stockholder Agreement. The execution, delivery and performance of this Agreement and the Amended and Restated Stockholder Agreement and the consummation by such Investor, the Existing Investors and the Investors’ Representative of the t ransactions contemplated hereby and thereby, including the authorization by the Investors and the Existing Investors of the Investors’ Representative to take actions on their behalf as set forth in Section 5.05 of this Agreement and Section 2.06 of the Amended and Restated Stockholder Agreement, have been duly and validly authorized by all necessary corporate or other action. This Agreement has been duly executed and delivered by such Investor, the Existing Investors and the Investors’ Representative and (assuming due authorization, execution and

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delivery by the Company) constitutes, and the Amended and Restated Stockholder Agreement, when executed and delivered by each of the Investors, the Existing Investors and the Investors’ Representative (assuming due authorization, execution and delivery by the Company and any other parties thereto), will constitute, a valid and binding obligation of such Investor, the Existing Investors and the Investors’ Representative, enforceable against such Investor, the Existing Investors and the Investors’ Representative in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law).

(b)No Conflict. The execution, delivery and performance by such Investor, the Existing Investors and the Investors’ Representative of this Agreement and the Amended and Restated Stockholder Agreement do not, and the consummation of the Offering and the other transactions contemplated hereby and thereby and compliance with the provisions of this Agreement and the Amended and Restated Stockholder Agreement will not, conflict with, or result in any Default under, or give rise to a right of termination, cancellation or acceler ation of any obligation or to the loss of a benefit under, or result in the amendment of any term or provision of or the creation of any Encumbrance upon any of the assets of such Investor, the Existing Investors or the Investors’ Representative under any provision of (i) the certificate of incorporation or bylaws or any relevant organizational documents of such Investor, such Existing Investor or the Investors’ Representative, (ii) any material Contract (with a party other than the Company) to which any of the Investors, the Existing Investors or the Investors’ Representative is a party or by which any of the Investors’, the Existing Investors’ or the Investors’ Representative’s assets are bound or (iii) any Law or Judgment, in each case applicable to any of the Investors, the Existing Investors or the Investors’ Representative or their assets, other than, in the case of clauses (ii) or (iii), any such conflicts, Defaults, rights, losses, amendment s or Encumbrances that would not reasonably be expected to materially impair or delay the ability of such Investor, such Existing Investor or the Investors’ Representative to perform its obligations (if any) under this Agreement or the Amended and Restated Stockholder Agreement or carry out the transactions contemplated hereby or thereby in accordance with the terms herein or therein. No material Permit, order or authorization of, or registration, declaration or filing with, or notice to, any Governmental Entity is required to be obtained or made by or with respect to any of the Investors, the Existing Investors or the Investors’ Representative in connection with the execution, delivery and performance of this Agreement, or the Amended and Restated Stockholder Agreement by such Investor, such Existing Investor or the Investors’ Representative or the consummation by such Investor, such Existing Investor or the Investors’ Representative of the Offering or the other transactions contemplated by this Agreement or the Amended and Restated Stockholder Agreement, except for compliance with and filings under the Exchange Act, the Securities Act, state securities Laws or “blue-sky” laws and the rules and regulations of the NYSE.

SECTION 3.03 Securities Act. The Shares purchased by such Investor pursuant to this Agreement are being acquired for investment only and not with a view to any public distribution thereof, and such Investor shall not offer to sell or otherwise

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dispose of the Shares or the Underlying Securities so acquired by it in violation of any of the registration requirements of the Securities Act.

SECTION 3.04 Available Funds. Such Investor has, or will have on or prior to the Closing, sufficient funds in its possession to permit it to acquire and pay for the Investor Shares to be purchased by it and to perform its obligations under this Agreement.

SECTION 3.05 Ownership of Common Stock. As of the date of this Agreement, the Investors, the Existing Investors and their affiliates, taken together, are the beneficial owners, as defined in Rule 1 3d-3 promulgated under the Exchange Act, of no more than 2,592,610 shares of Common Stock, provided that they also hold Series B Yucaipa Warrants to acquire 6,965,859 shares of Common Stock.

ARTICLE IV

Covenants

SECTION 4.01 Confidentiality. The Investors acknowledge that the information being provided to it in connection with the Offering and the consummation of the other transactions contemplated hereby is subject to the terms of a confidentiality agreement between the Investors’ Representative and the Company dated as of February 9, 2009 (the “Confidentiality Agreement”), the terms of which are incorporated herein by reference. Effective upon, and only upon, the Closing, the Confidentiality Agreement shall terminate and be superseded in all respects by the Amended and Restated Stockholder Agreement.

SECTION 4.02 Reasonable Best Efforts. (a) On the terms and subject to the conditions and limitations of this Agreement, including the provisions immediately below, each party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable.

(b) If any objections are asserted with respect to the Offering or the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by any applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each party hereto shall promptly notify each of the other parties hereto and shall use its reasonable best efforts to resolve any such objections or suits which, in any case if not resolved, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Offering or the other transactions contemplated hereby; provided that neither the Company nor any of the Investors shall be required to sell, hold sepa rate or otherwise dispose of any of their respective assets or assets of their respective subsidiaries, or conduct its business or the business of any of its subsidiaries, in a manner which would resolve such objections or suits.

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(c) Nothing in this Section 4.02 shall require the Investors to agree to any change to the terms of this Agreement, any Ancillary Agreements, the Company By-Law Amendment, the Senior Secured Notes or the Senior Secured Notes Offering, except, in the case of the Senior Secured Notes and the Senior Secured Notes Offering only, for such changes that would not (absent a waiver) cause the closing condition in Section 6.01(d) hereof to fail to be satisfied. In the event the obligations set forth in this Section 4.02 require the Investors to (i) make any payments of any money or incur any liability for fees, expenses or otherwise to any Third Party (other than ordinary course fees to advisors that would be incurred in connection with this Agreement absent the obligations in this Section 4.02) or (ii) resolve objections or suits, litigate or dispute any matter w ith a Third Party (other than Tengelmann or its affiliates), the Company shall reimburse the Investors for all out-of-pocket costs and expenses (including legal fees) associated therewith within 10 Business Days of receiving a reasonably detailed invoice from the Investors’ Representative.

SECTION 4.03 Fees and Expenses. (a) Upon the occurrence of the Closing, the Company shall reimburse the Investors for all reasonable Third Party out-of-pocket costs and expenses incurred by the Investors or on the Investors’ behalf in connection with this Agreement, the Ancillary Agreements, the Offering and the transactions contemplated by this Agreement and the Ancillary Agreements, including reasonable fees and expenses of accountants and counsel of the Investors; provided, however, that such amounts, not including the $135,000 paid by the Company to the Investors on or about July 2009, shall not exceed $1,250,000.

(b) On the Closing Date, the Company shall pay the Investors a placement fee equal to $2,625,000.

SECTION 4.04 NYSE. Promptly following the Closing, the Company shall apply to cause the Underlying Securities with respect to the Investor Shares to be approved for listing on the NYSE.

SECTION 4.05 Use of Proceeds. The net proceeds from the Offering, the Tengelmann Initial Shares and the Senior Secured Notes Offering shall be used for general corporate purposes.

SECTION 4.06 Conduct of Business. Except for matters set forth in Section 4.06 of the Company Disclosure Letter, otherwise contemplated by this Agreement (including the Senior Notes Offering) or the Ancillary Agreements or as required by applicable Law, without the prior written consent of the Investors, from the date of this Agreement to the Closing Date, the Company shall not (i) conduct its business other than in the ordinary course in all material respects and in compliance in all material respects with applicable Law, (ii) take any action (or cause or permit its subsidiaries to take any action) that would otherwise require the approval of the Investors and the Existing Investors under Section 2.05 of the Amended and Restated Stockholder Agreement (were it in effect at the time) or (iii) take any action that is intended or would reasonably be expected t o result in any condition in Article VI (other than 6.01(d) or 6.02(h)) not being satisfied.

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ARTICLE V

Additional Agreements

SECTION 5.01 Publicity. The Company and the Investors shall, and the Investors shall cause the Investors’ Representative to, communicate with each other and cooperate with each other prior to any public disclosure of the transactions contemplated by this Agreement. The Company, the Investors and the Investors’ Representative agree that no public release or announcement concerning the transactions contemplated hereby or by the Ancillary Agreements shall be issued by or as a result of the actions of any of them without the prior consent of the other parties hereto, except as such release or announcement may be required by Law or the rules and regulations of the NYSE, in which case the party required to make the release or announcement shall consult with the other parties hereto about, and allow the other parties hereto reasonable time (taking into account the circumsta nces) to comment on, such release or announcement in advance of such issuance.

SECTION 5.02 Transfer Restrictions. The Investors acknowledge and agree that the Shares and the Underlying Securities (a) have not been registered under the Securities Act or under any state securities laws, (b) will be, when issued, restricted securities under the Securities Act and may not be offered or sold except pursuant to an effective registration statement or an available exemption from registration under the Securities Act and (c) shall be subject to the restrictions on transfer set forth in the Amended and Restated Stockholders Agreement.

SECTION 5.03 Purchase for Investment. Each Investor (i) is acquiring the Shares pursuant to an exemption from registration under the Securities Act solely for investment with no present intention to distribute them to any person in violation of the Securities Act or any applicable U.S. state securities laws, (ii) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of the Offering and of making an informed investment decision, has conducted a review of the business and affairs of the Company that it considers sufficient and reasonable for purposes of purchasing the Investor Shares and has been provided an opportunity to ask questions of and receive answers from representatives of the Company concerning the terms and conditions of this Agreement, the Ancillary Agreements an d the purchase of the Investor Shares, (iii) is able to bear the economic risk of the Offering and at the present time is able to afford a complete loss of such investment and (iv) is an “institutional accredited investor” (as that term is defined by Rule 501 under the Securities Act).

SECTION 5.04 Legend. The Investors agree that the Shares and Underlying Securities will bear a legend substantially to the following effect and, in the case of the Underlying Securities, with such modifications as may reasonably be required:

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES

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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 JULY , 2009, BY AND AMONG T HE 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.

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.”

SECTION 5.05 Investors’ Representative. The parties hereto acknowledge and agree that Yucaipa American Alliance Fund II, LLC shall be the designated representative of the Investors, or the Investors’ Representative, with the

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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 the Investors, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of the Investors, and 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 the Investors’ Representative and the Company shall be fully protected against liability in relying on the actions of the Investors’ Representative as being authorized by the Investors.

SECTION 5.06 Waiver. The Company hereby agrees to waive any provision in the Stockholder Agreement that would be required to be waived in order for the parties hereto to enter into and perform their obligations and exercise their rights under this Agreement, the Ancillary Agreements and the Company By-Laws Amendment and to consummate the transactions contemplated hereby and thereby.

ARTICLE VI

Conditions Precedent

SECTION 6.01 Conditions to Each Party’s Obligation. The obligation of the Investors to purchase and pay for the Investor Shares and the obligation of Company to issue such Investor Shares to the Investors is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

(a)No Injunctions or Restraints. No Law or injunction enacted, entered, promulgated, enforced or issued by any Governmental Entity preventing the consummation of the Offering or the transactions contemplated by the Ancillary Agreements shall be in effect.

(b)Amended and Restated Stockholder Agreement. The Company, the Existing Investors, the Investors and the Investors’ Representative shall have duly authorized, executed and delivered the Amended and Restated Stockholder Agreement.

(c)Tengelmann Investment. Tengelmann and the Company shall have entered into the Amended and Restated Tengelmann Stockholder Agreement and the closing under the Tengelmann Investment Agreement shall occur concurrently with, and be subject to, the Closing hereunder and each of the Amended and Restated Tengelmann Stockholder Agreement and the Tengelmann Investment Agreement shall be in the form delivered to the Investors on the date hereof.

(d)Senior Secured Notes Offering. The Senior Secured Notes Offering in an aggregate principal amount of at least $225,000,000 shall close prior to or concurrently with the Offering, and the terms and conditions of the Senior Secured Notes shall not be materially less favorable in the aggregate, to the Company or to the Investors,

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as holders of the Convertible Preferred Stock, than the terms and conditions set forth in Section 6.01 of the Company Disclosure Letter.

SECTION 6.02 Conditions to Obligation of the Investors. The obligation of the Investors to purchase and pay for the Investor Shares is subject to the satisfaction (or waiver by the Investors) on or prior to the Closing Date of the following conditions:

(a)Representations and Warranties. (i) The representations and warranties of the Company contained in this Agreement (other than in Sections 2.02(a) and 2.03(a), which Sections shall be the subject of Section 6.02(a)(ii)) shall be true and correct, without giving effect to any “materiality” or “Material Adverse Effect” qualifications therein, as of the date of this Agreement, except to the extent that any failures of such representations and warranties to be so true and correct, individually or in the aggregate, have not had a Material Adverse Effect and (ii) the representations and warranties of the Company set for th in Sections 2.02(a) and 2.03(a) shall be true and correct in all material respects, as of the date of this Agreement, except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date.

(b)Performance of Covenants of the Company. The Company shall have performed or complied in all material respects with all covenants contained in this Agreement to be performed or complied with by the Company prior to or at the Closing.

(c)     Company Closing Certificate. The Investors shall have received a certificate signed by the chief executive officer or the chief financial officer of the Company on behalf of the Company, dated as of the Closing Date, to the effect that the conditions set forth in Sections 6.02(a) and 6.02(b) have been satisfied (the “Company Closing Certificate”).

(d)Opinion of Counsel. The Investors shall have received (i) an opinion dated as of the Closing Date of counsel to the Company, substantially in the form attached hereto as Exhibit C and (ii) an opinion dated as of the Closing Date of Maryland counsel to the Company, substantially in the form attached hereto as Exhibit D.

(e)Articles Supplementary. The Company shall have filed the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland and the State Department of Assessments and Taxation of the State of Maryland shall have accepted the Convertible Preferred Articles Supplementary for record.

(f)Board of Directors. The Board of Directors shall have taken all actions necessary and appropriate to permit Frederick F. Brace and Terry Wallock, to be elected to the Board effective immediately upon the delivery of a written consent to such effect to the holders of the Investor Shares following the Closing; provided that if the Governance Committee of the Board of Directors reasonably determines that neither of them qualify as an “Independent Director” under NYSE Rule 303A.02 (or any successor

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provision thereto), then the Board of Directors shall take all actions necessary to qualify another individual designated by the Investors as an “Independent Director” under NYSE Rule 303A.02 (or any successor provision thereto) so that immediately after the Closing two individuals designated by the Investors have been elected to the Board of Directors.

(g)Company By-Laws Amendment. The Company shall have adopted the Company By-Laws Amendment.

(h)Senior Secured Notes Offering. The Senior Secured Notes Offering in an aggregate principal amount of at least $225,000,000 shall close prior to or concurrently with the Offering, and (in addition to and without limitation of the closing condition in Section 6.01(d)), the terms and conditions of such Senior Secured Notes described in Section 6.02 of the Company Disclosure Letter shall not be changed without Investors prior written consent (which may be withheld in the Investors’ sole discretion).

SECTION 6.03 Conditions to Obligation of the Company. The obligation of the Company to sell the Investor Shares is subject to the satisfaction (or waiver by the Company) on or prior to the Closing Date of the following conditions:

(a)Representations and Warranties. The representations and warranties of the Investors, the Existing Investors and the Investors’ Representative made in this Agreement and the Ancillary Agreements shall be true and correct in all material respects as of the date of this Agreement, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

(b)Performance of Covenants of the Investors. The Investors and the Investors’ Representative shall have performed or complied in all material respects with all covenants contained in this Agreement to be performed or complied with by the Investors or the Investors’ Representative prior to or at the Closing.

(c) Investor Closing Certificates. The Company shall have received from each Investor a certificate, signed by the Investors’ Representative on behalf of such Investor dated as of the Closing Date, to the effect that the conditions set forth in Sections 6.03(a) and 6.03(b) have been satisfied (the “Investor Closing Certificates”).

SECTION 6.04 Satisfaction of Sections 6.01(d) and 6.01(h). If the Company provides one Business Day advance written notice of the pricing of the Senior Secured Notes Offering, the Investors’ Representative shall cooperate in good faith with the Company on the pricing date, including to make available representatives authorized to evaluate whether the “description of the notes” from the offering memorandum for the Senior Secured Notes Offering satisfies the conditions set forth in Sections 6.01(d) and 6.01(h). If on the pricing date, the Investors’ Representative delivers a written notice agreeing that the conditions in Sections 6.01(d) and 6.01(h) have been satisfied, then such conditions shall irrevocably be deemed to be satisfied upon the Closing of the Offering so long as the terms of the Senior Secured Notes at Closing of the Offering are the same as the “description of the notes” from the offering memorandum.

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SECTION 6.05 Frustration of Closing Condition. No party to this Agreement may rely on the failure of any condition set forth in this Article VI to be satisfied if such failure was caused by such party’s failure to cooperate or to use its reasonable best efforts to cause the Closing to occur, as required by Section 4.02.

ARTICLE VII

Indemnification

SECTION 7.01 Indemnification. (a) Except as set forth below, the representations and warranties of the parties contained in this Agreement (including the Company Disclosure Letter) shall not survive the Closing Date. The representations and warranties contained in the first sentence of Section 2.13 and in Sections 2.02(b), 2.12, 2.15, 2.16, 2.17, 2.18, 2.19 and 3.02(b) shall survive until the first anniversary of the Closing Date. The representations and warranties contained in Sections 2.02(a), 2.03 and 3.02(a) shall survive indefinitely.

(b)The Company hereby agrees to indemnify, pay and hold each Investor, and each of the respective officers, directors, employees and affiliates of each Investor, and each of the respective direct and indirect beneficial owners of each Investor harmless, to the fullest extent permitted by Law, from and against any and all Losses which may be imposed on, incurred by or asserted against such Indemnified Party, in any manner relating to or arising out of (i) the breach of any representation or warranty set forth in the first sentence of Section 2.13 and in Sections 2.02, 2.03, 2.12, 2.15, 2.16, 2.17, 2.18 and 2.19 of this Agreement, as of the date hereof or as of the Closing Date, in each case, except with respect to Section 2.1 2(a)(ii) and the first sentence of Section 2.13, without giving effect to any limitation or qualification as to “materiality,” “material,” (including references to “material subsidiary” or “material subsidiaries”), “Material Adverse Effect” or similar qualifiers set forth in such representation or warranty for purposes of determining whether there is a breach and the Losses resulting from, arising out of or relating to such breach, or (ii) the breach, non-compliance or non-performance of any covenant, agreement or obligation of the Company contained in this Agreement at any time (the “Company Indemnified Liabilities”). The Company acknowledges and agrees that for purposes of its indemnification and other obligations under this Article VII, it will be deemed to have given the representations and warranties listed in clause (i) above both as of the date of this Agreement and as of the Closing Date and this Article VII will apply to any breaches at Closing as if such representations and warranties were given and made as of Closing.

(c)Each Investor severally but not jointly hereby agrees to indemnify, pay and hold the Company and its officers, directors, employees and affiliates harmless to the fullest extent permitted by Law, from and against any and all Losses which may be imposed on, incurred by, or asserted against such Indemnified Party, in any manner relating to or arising out of the breach of any representation or warranty set forth in Section 3.02 of this Agreement, without giving effect to any limitation or qualification as to “materiality,” “material,” “Material Adverse Effect” or similar qualifiers set forth in

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such representation or warranty for purposes of determining whether there is a breach and the Losses resulting from, arising out of or relating to such breach (the “Investor Indemnified Liabilities”, and together with the Company Indemnified Liabilities, the “Indemnified Liabilities”).

(d) A party hereto seeking indemnification under this Article VII (the “Indemnified Party”) with respect to any action, lawsuit, proceeding, investigation or other claim brought against it by a Third Party (a “Third-Party Claim”) shall give prompt written notice to the party from whom indemnification is sought (the “Indemnitor”) of such Third-Party Claim that might give rise to Indemnified Liabilities setting forth a description of those elements of such Third-Party Claim of which such Indemnified Party has knowledge; provided that any delay or failure to give such notice shall not affect the obligations of the Indemnitor unless (and then solely to the extent) such Indemnitor is materially prejudiced by such delay or failure. The Indemnitor shall have the right at any time during which such Third-Party Claim is pending to sele ct counsel to defend and control the defense thereof and settle any Third-Party Claim for which they are responsible for indemnification hereunder (provided that the Indemnitor will not settle any such Third-Party Claim without (i) the appropriate Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or (ii) obtaining an unconditional release of the appropriate Indemnified Party from all claims arising out of or in any way relating to the circumstances involving such Third-Party Claim) so long as in any such event the Indemnitor shall have stated in a writing delivered to the Indemnified Party that, as between the Indemnitor and the Indemnified Party, the Indemnitor is responsible to the Indemnified Party with respect to such Third-Party Claim to the extent and subject to the limitations set forth herein; provided that the Indemnitor shall not be entitled to control the defense of any Third-Party Claim in the event that in the reasonable opin ion of counsel for the Indemnified Party there are one or more material defenses available to the Indemnified Party which are not available to the Indemnitor or that a conflict of interest is likely to exist if the same counsel were to represent the Indemnitor and the Indemnified Party; provided further that with respect to any Third-Party Claim as to which the Indemnified Party is controlling the defense, the Indemnitor will not be liable to any Indemnified Party for any settlement of any Third-Party Claim pursuant to this Section that is effected without its prior written consent. All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend a matter not inconsistent with this Article VII) shall be paid to the Indemnified Party, as incurred, within 20 calendar days of written notice thereof to the Indemnitor (regardless of whether it is ultimately determined that the Indemnifi ed Party is not entitled to indemnification hereunder; provided that the Indemnitor may require the Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that the Indemnified Party is not entitled to indemnification hereunder). To the extent that the undertaking to indemnify, pay and hold harmless set forth herein may be unenforceable because it is violative of any Law or public policy, the Indemnitor shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties or any of them. The obligations of the parties set forth in this Article VII with regard to the breach or inaccuracy of the representations and

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warranties in this Agreement shall survive until the applicable representation or warranty ceases to survive pursuant to Section 7.01 of this Agreement and, with respect to any claim for Indemnified Liabilities made prior to such time that the applicable representation or warranty ceases to survive, until the final resolution thereof.

(e) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnitor shall not be liable for any claim for indemnification pursuant to this Section 7.01 with respect to any breach, non-compliance or non-performance of any representation, warranty, covenant, agreement or obligation, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnitor equals or exceeds on a cumulative basis an amount equal to $2.5 million, after which the Indemnitor shall be liable for the full amount of all such Losses from and including the first dollar of all such Losses and (ii) with respect to any breach of any representation, warranty or covenant, the maximum amount of indemnifiable Losses which may be recovered from an Indemnitor arising out of or resulting from the causes set forth in Section 7.01 shall be an amount equal to the Purchase Price.

ARTICLE VIII

Termination

SECTION 8.01 Termination. (a) Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the Offering and the other transactions contemplated by this Agreement abandoned at any time prior to the Closing upon written notice (other than in the case of Section 8.01 (a)(i) below) from the terminating party to the non-terminating party specifying the subsection of this Section 8.01 to which such termination is effected:

(i)by mutual written consent of the Company and the Investors;

(ii)by the Company, if any of the conditions set forth in Section 6.01 or 6.03 shall have become incapable of fulfillment, and shall not have been waived by the Company;

(iii)by the Investors, if any of the conditions set forth in Section 6.01 or Section 6.02 shall have become incapable of fulfillment, and shall not have been waived by the Investors;

(iv)by the Company or the Investors, if the Tengelmann Investment Agreement is terminated; or

(v) by the Company or the Investors, if the Closing does not occur on or prior to August 14, 2009;

provided, however, that the right to terminate this Agreement under the foregoing clauses (ii), (iii) and (v) of this Section 8.01(a) shall not be available to any party whose action or

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failure to act in violation of this Agreement has been a principal cause of, or resulted in, the event or circumstance giving rise to the right to terminate this Agreement.

(b) If the transactions contemplated by this Agreement are terminated as provided herein:

(i)the Investors shall, and shall cause the Investors’ Representative to, return all documents and other material received from the Company relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the Company; and

(ii)all confidential information received by the Investors or the Investors’ Representative with respect to the business of the Company and its subsidiaries shall be treated in accordance with the Confidentiality Agreement, which shall remain in full force and effect notwithstanding the termination of this Agreement.

SECTION 8.02 Effect of Termination. (a) If this Agreement is terminated and the transactions contemplated hereby are abandoned as described in Section 8.01, this Agreement shall become null and void and of no further force and effect, except for the provisions of (i) Section 4.01 relating to the obligation of the Investors to keep confidential certain information and data obtained by them, (ii) Section 8.01 and this Section 8.02 and (iii) Sections 9.06, 9.07, 9.08, 9.09, 9.10 and 9.11 as applicable to the interpretation and enforcement of clauses (i) and (ii) above and the Sections referenced therein. Further, nothing in this Section 8.02 shall be deemed to release any party from any liability for any willful and material breach by such party of the terms and provisions of this Agreement.

(b) If this Agreement is terminated pursuant to Section 8.01 (a)(ii) (except as a result of a material breach by the Investors), Section 8.01 (a)(iii), Section 8.01 (iv) or Section 8.01(v), then the Company shall pay and reimburse the Investors for all reasonable Third Party out-of-pocket costs and expenses incurred by the Investors or on the Investors’ behalf in connection with this Agreement, the Ancillary Agreements, the Offering and the transactions contemplated by this Agreement and the Ancillary Agreements; provided, however, that such amounts shall not exceed $1,250,000. Payment of such fees and expenses shall be made by the Company to the Investors (by wire transfer of immediately available funds to an account designated by the Investors) not later than two Business Days after delivery to the Company by the Investors of a notice of demand for payment.

ARTICLE IX

General Provisions

SECTION 9.01 Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Except as otherwise provided in this Agreement, any failure of any party to

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comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

SECTION 9.02 Assignment. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party without the prior written consent of the other parties hereto. Notwithstanding the foregoing, (a) each Investor may assign its right to purchase the Investor Shares to a controlled affiliate of such Investor or The Yucaipa Companies, LLC; provided that the representations and warranties of such Investor made in this Agreement and the Ancillary Agreements shall be true and correct in all material respects as if given by such controlled affiliate or The Yucaipa Companies, LLC and such controlled affiliate or The Yucaipa Companies, LLC shall become party to this Agreement and the Amended and Restated Stockholder Agreement by execution of a joinder hereto or thereto, and each such controlled affiliate or The Yucaipa Companies, LLC shall const itute an “Investor” for purposes hereunder as if it were an “Investor” as of the date hereof, and (b) each Investor may assign its rights hereunder by way of security; provided, however, that no assignment shall limit or affect the assignor’s obligations hereunder. Any attempted assignment in violation of this Section 9.02 shall be void.

SECTION 9.03 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such permitted assigns, any legal or equitable rights hereunder, except that each Indemnified Party is an intended beneficiary of Section 7.01 and may enforce the provisions of such Sections directly against the parties with obligations thereunder.

SECTION 9.04 Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when received, as follows:

if to the Investors, the Existing Investors or the Investors’ Representative;

Yucaipa American Alliance Fund II, LLC

9130 W. Sunset Boulevard

Los Angeles, California 90069

Fax: (310) 789-1791

Email: legal@yucaipaco.com

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with a copy to (which shall not constitute notice to any Investor, Existing Investor or the Investors’ Representative):

Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, California 90071

Attention: Robert O’Shea, Esq.; and

if to the Company;

The Great Atlantic & Pacific Tea Company, Inc.

Two Paragon Drive

Montvale, New Jersey 07645

Attention: Allan Richards, Esq.

with copies to (which shall not constitute notice to the Company):

Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, New York 10036

Attention: Patrick J. Dooley, Esq.,

Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

Attention: Kenneth W. Orce, Esq.

John Schuster, Esq.

and

Cravath, Swaine & Moore LLP

825 Eighth Avenue

New York, New York 10019

Attention: Sarkis Jebejian, Esq.

LizabethAnn Eisen, Esq.

SECTION 9.05 Interpretation; Exhibits and Schedules; Certain Definitions. The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The term “or” is not exclusive. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated.

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For all purposes hereof:

“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 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 prior to the date hereof).

“Action” means any action, cause of action, claim, prosecution, investigation, suit, litigation, grievance, arbitration or other proceeding, whether civil, criminal or administrative, at Law or in equity, by or before any Governmental Entity.

“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. A person shall be deemed to control another person if such first person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise.

“By-Laws” means the By-Laws of the Company, as amended and restated on January 17, 2008.

“Business Day” means any day, other than a Saturday, Sunday or a day on which banks or national securities exchanges located in New York shall be authorized by Law to close.

“Capital Lease Obligations” means the obligations of the Company and its subsidiaries on a consolidated basis to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a consolidated balance sheet of the Company and its subsidiaries under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board, as amended) and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount of such obligations, determined in accordance with GAAP (including such Statement No. 13).

“Charter” means the Articles of Amendment and Restatement of the Articles of Incorporation of the Company accepted for record by the State Department of Assessments and Taxation of the State of Maryland on July 1, 2008.

“ChaseMellon Warrants” means the warrants issued by Pathmark Stores, Inc. pursuant to the Warrant Agreement dated as of September 19, 2000 between Pathmark Stores, Inc. and ChaseMellon Shareholder Services, LLC, and assumed by the Company.

“Code” means the Internal Revenue Code, as amended, and the rules and regulations promulgated thereunder.

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“Collective Bargaining Agreement” means any collective bargaining agreement or any other labor-related agreement with any labor union or labor organization to which the Company or any of its subsidiaries is a party.

“Company By-Laws Amendment” means the amendments to the By-Laws as adopted by 66.67% of the directors then serving on the Board of Directors, to implement the provisions set forth in Sections 2.01, 2.05 and 8.01 of the Amended and Restated Stockholder Agreement and Sections 2.01, 2.04 and 8.01 of the Amended and Restated Tengelmann Stockholder Agreement, to provide that the Maryland Control Share Acquisition Act (Section 3-701, et seq. of the MGCL) shall not apply to the Investors or Tengelmann or any of their respective affiliates and any other amendments to the By-Laws required to implement the transactions contemplated hereby or by the Ancillary Agreements.

“Company Contract” means, collectively, the following Contracts to which the Company or any of its subsidiaries is a party or by which any of its or their respective assets are bound:

(i)any Contract evidencing Indebtedness over $5,000,000;

(ii)any Collective Bargaining Agreement;

(iii)any partnership or joint venture Contract;

(iv)any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);

(v)any Contract which contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or its subsidiaries, or which restricts the conduct of any line of business by the Company or its subsidiaries or any geographic area in which the Company or any of its subsidiaries may conduct business, in each case in any material respect;

(vi)any Contract providing for capital expenditures or the acquisition or construction of fixed assets which requires payments by any of the Company or its subsidiaries in excess of $3,000,000 in any year;

(vii)any Contract for the sale or other transfer of Owned Real Property or other material tangible assets having a fair market value in excess of $3,000,000 that has not yet been consummated, other than sales of inventory in the ordinary course of business generally consistent with past practice;

(viii)any Contract with an affiliate of the Company or any officer, director, employee or related persons (as defined in Regulation S-K Item 404) of the Company;

(ix) any distribution, supply, vendor, inventory purchase, sales agency or advertising Contract (other than purchase orders entered into in the ordinary course of business generally consistent with past practice) involving annual expenditures by any of

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the Company or its subsidiaries in excess of $5,000,000 which is not cancelable (without giving rise to any penalty or additional liability or cost) within one year;

(x)(A) any other Contract (excluding Company Leases), not otherwise covered by clauses (i) through (x) of this definition of “Company Contract”, that requires payments by the Company or its subsidiaries in excess of $5,000,000 during any one year and (B) is not cancelable on 90 days, or less notice; and

(xi)any written commitment (including any letter of intent or memorandum of understanding) to enter into any agreement of the type described in clauses (i) through (x) of this definition of “Company Contract”.

“Company Plans” means all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, incentive, stock option, stock purchase, restricted stock, phantom stock or other stock-based compensation, deferred compensation, medical, life insurance, disability, fringe benefit, supplemental executive retirement, severance or other compensation or benefit plans, programs, policies, practices, trusts or arrangements, and all employment, termination, severance, change in control, compensation or other Contracts or agreements, to which the Company or any of its subsidiaries or ERISA Affiliates is a party, or which are sponsored, maintained or contributed to by the Company or any of its subsidiaries or ERISA Affiliates or as to which the Com pany or any of its subsidiaries or ERISA Affiliates has any liability and any material Contracts, arrangements, agreements, policies, practices or understandings between the Company or any of its ERISA Affiliates and any current or former employee, director or consultant of the Company or of any of its subsidiaries, including any Contracts, arrangements or understandings relating to a change in control of the Company; provided, however, that the term “Company Plans” shall exclude any plan that is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

“Contract” means any contract, agreement, commitment, lease, purchase order, license, mortgage, indenture, supplemental indenture, line of credit, note, bond, loan, credit agreement, capital lease, sale/leaseback arrangement, concession agreement, franchise agreement or other instrument, including all amendments, supplements, exhibits and attachments thereto.

“Convertible Notes” means the Company’s 5.125% Convertible Senior Notes due 2011 and the 6.75% Convertible Senior Notes due 2012.

“Copyrights” means all rights in a work of authorship and all copyrights (including all registrations and applications to register the same).

“Default” means in violation of, or in default under (or, with or without the giving of notice or lapse of time, or both, would be in default) according to the terms of the relevant document or agreement.

“DOJ” means the United States Department of Justice.

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“Encumbrance” means any lien, encumbrance, security interest, pledge, mortgage, hypothecation, charge, restriction on transfer of title, adverse claim, title retention agreement of any nature or kind, or other encumbrance, except for any restrictions arising under any applicable securities Laws or pursuant to the Amended and Restated Stockholder Agreement or the Amended and Restated Tengelmann Stockholder Agreement.

“Environment” means ambient air, indoor air, surface water, groundwater and surface and subsurface strata and natural resources such as wetlands, flora and fauna.

“Environmental Law” means any Law and the common law relating to (i) pollution or the protection of the Environment, (ii) the protection of human health and safety as it pertains to Hazardous Materials or (iii) the generation, handling, use, presence, treatment, transport, storage, disposal or Release of any Hazardous Materials.

“ERISA Affiliate” means any trade or business, whether or not incorporated, which together with the Company would be deemed a “single employer” within the meaning of Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA.

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

“Facilities” means any store, office, plant or warehouse owned or leased by the Company or any of its subsidiaries.

“FTC” means the United States Federal Trade Commission.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

“Governmental Entity” means any domestic or foreign, transnational, national, Federal, state, municipal or local government, or any other domestic or foreign governmental, regulatory or administrative authority, or any agency, board, department, commission, court, tribunal or instrumentality thereof.

“Hazardous Materials” means any pollutant, contaminant, waste, chemical, compound, substance or material, including any petroleum or petroleum product or by-product, asbestos-containing material, urea formaldehyde foam insulation, and mold, regulated under any Environmental Law.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“including” means including, without limitation.

“Indebtedness” means, with respect to any person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such

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person evidenced by

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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 acc ounts 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.

“Intellectual Property” means all Trademarks, Patents, Copyrights, Trade Secrets, service marks, service mark rights, computer programs, moral rights and the benefits of any waivers of moral rights and any other proprietary intellectual property rights.

“Judgment” means any applicable judgment, order or decree of any Governmental Entity.

“knowledge of the Company” or “to the Company’s knowledge” means the actual knowledge of the particular fact in question by the individuals set forth in Section 9.05 of the Company Disclosure Letter.

“Labor Laws” means any applicable Law relating to employment standards, employee rights, health and safety, labor relations, workplace safety and insurance or pay equity.

“Laws” means any applicable statute, code, rule, regulation, ordinance, Judgment, or other pronouncement of any Governmental Entity.

“Losses” means all liabilities, costs, expenses, obligations, losses, damages (including diminution of value, lost profits, consequential damages and third-party punitive damages but excluding special damages, incidental damages and punitive damages not payable to third parties), penalties, actions, judgments, suits, claims and disbursements of any kind or nature, liabilities for Taxes, fees or expenses (including without limitation, legal fees).

“Material Adverse Effect” means any change, event or circumstance that, individually or in the aggregate with all other changes, events and circumstances, has had a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, other than any change, event or circumstance arising out of: (a) general economic (including changes in prevailing interest rates, credit availability and liquidity, currency exchange rates, and price levels or trading volumes in the United States or foreign securities markets), legal, regulatory or

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political conditions in the United States of America or geographic regions in which the Company and its subsidiaries operate; (b) conditions generally affecting the industries in which the Company and its subsidiaries operate; (c) the announcement, pendency or consummation of the Offering or the other transactions contemplated hereby or by the Ancillary Agreements; (d) any change in the market price or trading volume of the Common Stock in and of itself (but not any change, event or circumstance that may be underlying such decrease to the extent that such change, event or circumstance would otherwise constitute a Material Adverse Effect); (e) any changes in the securities markets generally, or in the credit markets, any downgrades in the credit markets, or adverse credit events resulting in deterioration in the credit markets generally or in respect of the customers of the Company; (f)  the commencement or escalation of a war or armed hostilities or the occurrence of acts of terrorism or sabotage; (g) earthquakes, hurricanes or other natural disasters; (h) compliance with the requirements of changes in Law, GAAP or other accounting requirements or any interpretation thereof; (i) any failure by the Company to meet published revenue or earnings projections (but not any change, event or circumstance that may be underlying such failure to the extent that such change, event or circumstance would otherwise constitute a Material Adverse Effect); (j) any adverse effect on the Company under Section 382 of the Code resulting from an “ownership change” of the Company as defined in Section 3 82(g) of the Code or (k) any legal claims or other proceedings made by any of the Company’s stockholders or debtholders arising out of or related to the Offering.

“NYSE” means the New York Stock Exchange.

“Patents” means all patents, patent rights and patent applications, including divisions, continuations, continuations-in-part, reissues, re-examinations and all extensions thereof.

“Permits” means, collectively, all applicable consents, approvals, permits, orders, authorizations, licenses and registrations from Governmental Entities.

“Permitted Encumbrances” means: (i) mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, construction and other Encumbrances arising or incurred in the ordinary course of business and not yet due and payable or being contested in good faith by appropriate proceedings; (ii) Encumbrances for Taxes, utilities and other governmental charges that, in each case, are not yet due or payable, are being contested in good faith by appropriate proceedings or may thereafter be paid without giving rise to any material penalty or material additional cost or liability; (iii) matters of record or registered Encumbrances affecting title to any owned or leased real property of a person and its subsidiaries; (iv) requirements and restrictions of zoning, building and other appli cable Laws and municipal by-laws, and development, site plan, subdivision or other agreements with municipalities that do not individually or in the aggregate materially and adversely affect the use of the owned or leased real property of a person and its subsidiaries affected thereby as currently used in the business of such person and its subsidiaries; (v) statutory Encumbrances of landlords for amounts not yet due and payable; (vi) Encumbrances arising under conditional sales Contracts and equipment leases with third parties entered into in the ordinary course of business generally

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consistent with past practice; (vii) defects, irregularities or imperfections of title and other Encumbrances which, individually or in the aggregate, do not materially impair the continued use (in a manner generally consistent with current use in the business of the person and its subsidiaries) of the asset or property to which they relate; and (viii) with respect to the Company and its subsidiaries, Encumbrances arising under the ABL Credit Agreement.

“person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.

“Real Property” means, collectively, the Owned Real Properties, the Company Leases and the Company Tenant Leases.

“Registered Intellectual Property” means all (i) registered trademarks and service marks and applications therefor, (ii) registered copyrights and applications therefor, (iii) issued patents and patent applications and (iv) domain names, in each case, that are owned by the Company or any of its subsidiaries and are material to the conduct of the business of the Company and its subsidiaries.

“Release” means any spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping or disposing of Hazardous Materials (including the abandonment or discarding of barrels, containers or other closed receptacles containing Hazardous Materials) into or through the Environment or into or out of any real property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Series B Yucaipa Warrants” means the 6,965,858 warrants, exercisable at $32.40, issued by the Company on December 3, 2007.

“SOX” means the Sarbanes-Oxley Act of 2002.

“subsidiary” of any person means, on any date, any person (i) the accounts of which would be consolidated with and into those of the first person in such person’s consolidated financial statements if such financial statement 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) an amount of the voting securities, other voting ownership or voting partnership interests of which is 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) is owned, directly or indirectly, controlled or held by such first person or by one or more subsidiaries of such first person.

“Tax” means any foreign, Federal, state or local income, sales and use, excise, franchise, real and personal property, gross receipt, capital stock, production,

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business and occupation, disability, estimated, employment, payroll, severance or withholding tax or other tax, duty, fee, impost, levy, assessment or charge imposed by any taxing authority, and any interest or penalties and other additions to tax related thereto.

“Tax Returns” means any return, report, declaration, information return or other document required to be filed with any Tax authority with respect to Taxes, including any amendments thereof.

“Third Party” means any person other than the Company, the Investors, the Investors’ Representative or any of their respective affiliates.

“Trade Secrets” means all proprietary, confidential information, formulas, processes, data, know-how, devices or compilations of information used in a business that confer a competitive advantage over those in similar businesses who do not possess them or know how to use them.

“Trademarks” means all trademarks, trademark rights, trade names, trade name rights, brands, logos, trade dress, business names and Internet domain names, together with the goodwill associated with any of the foregoing and all registrations and applications for registration of the foregoing.

“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin Board on which the relevant security of the Company is listed or quoted for trading on the date in question.

“Voting Debt” means bonds, debentures, notes or other debt securities having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) generally in the election of directors of the Company or other matters on which holders of the Common Stock may vote.

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

SECTION 9.06 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

SECTION 9.07 Entire Agreement. This Agreement, the Ancillary Agreements and the Confidentiality Agreement, along with the Company Disclosure Letter, the Schedules and the Exhibits thereto, contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. None of the parties shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as

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specifically set forth herein or in the Ancillary Agreements or the Confidentiality Agreement.

SECTION 9.08 Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances.

SECTION 9.09 Consent to Jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of New York, New York County and (b) the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, any Ancillary Agreement or any transaction contemplated hereby or thereby. Each party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth a bove shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Section 9.09. Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, any Ancillary Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

SECTION 9.10 Governing Law. This Agreement shall 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.

SECTION 9.11 Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement, any Ancillary Agreement or any transaction contemplated hereby or thereby. Each party (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 and the Ancillary Agreements, as applicable, by, among other things, the mutual waivers and certifications in this Section 9.11.

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SECTION 9.12 No Personal Liability of Partners, Directors, Officers,  Owners, Etc. No director, officer, employee, incorporator, stockholder, managing member, member, general partner, limited partner, principal or other agent of any of the Investors shall have any liability for any obligations of the Investors under this Agreement or for any claim based on, in respect of, or by reason of, the obligations of the Investors hereunder. The Company waives and releases all such liability. This waiver and release is a material inducement to the Investors’ entry into this Agreement.

SECTION 9.13 Rights of Holders. Each party to this Agreement shall have the absolute right to exercise or refrain from exercising any right or rights that such party may have by reason of this Agreement, including, without limitation, the right to consent to the waiver or modification of any obligation under this Agreement, and such party shall not incur any liability to any other party or other holder of any securities of the Company as a result of exercising or refraining from exercising any such right or rights.

SECTION 9.14 Adjustment in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof, each reference in this Agreement and the Ancillary Agreements to a number of shares or a price per share shall be amended to appropriately account for such event.

[Signature page to follow.]

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IN WITNESS WHEREOF, the Investors, the Company, the Existing Investors (solely for the purposes of Section 3.02 and 3.05 of this Agreement) and the Investors’ Representative (solely for the purposes of Section 5.05 of this Agreement) have duly executed this Agreement as of the date first written above.

YUCAIPA AMERICAN ALLIANCE FUND II, LP
By: Yucaipa American Alliance Fund II, LLC
Its: General Partner
by
	Name: Robert P. Bermingham
	Title: Vice President
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND H, LP
By: Yucaipa American Alliance Fund II, LLC
Its: General Partner
by
	Name: Robert P. Bermingham
	Title: Vice President

IN WITNESS WHEREOF, the Investors, the Company, the Existing Investors (solely for the purposes of Section 3.02 and 3.05 of this Agreement) and the Investors’ Representative (solely for the purposes of Section 5.05 of this Agreement) have duly executed this Agreement as of the date first written above.

YUCAIPA AMERICAN ALLIANCE FUND II, LP
Its: General Pa
by
	Name: Robert ermingham
	Title: Vice President
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP
Its: Gam:
by
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
by
	Name:
	Title:

	Solely for the Purposes of Section 3.02 and 3.05 of this Agreement
YUCAIPA CORPORATE INITIATIVES FUND I, LP
Its: Ge r I
by
YUCAIPA AMERICAN ALLIANCE FUND 1, LP
Its: Ge
by
Title: Vice President
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP
Its: Gen artner
by

Solely for the Purposes of Section 5.05 of this Agreement
Yucaipa American Alliance Fund II, LLC,
as Invest. ‘ Repre ntative,
by
	Title: Vice President

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 Co nvertible 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.

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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 sh are 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 wi th 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, dated as of the date hereof, between the Company and Tengelmann.

“Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated Yucaipa Stockholder Agreement, dated as of the date hereof, 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.

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“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

63

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).

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“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 1 3(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

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(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.

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“Nonpayment” has the meaning set forth in Section 1 5(d)(i).

“Nonpayment Preferred Director” has the meaning set forth in Section 1 5(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.

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“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 1 5(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 1 5(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 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

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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 1 3D 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 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

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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, vali dly 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 S tock 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 [·], 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 immedia tely 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.

(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.

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(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 distributio ns 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) cash or (ii) additional shares of Converti ble 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

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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)&n bsp;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.

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.

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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 1 8.99% 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 distr ibutions 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 show n 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;

(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

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(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 indenture governing the Senior Secured Notes) 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 a nd 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;

(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;

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(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 Conve rtible 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 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 deliver y 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

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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 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 oth er 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

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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
[·]-09	50.0000	46.0003	41.5267	34.8385	26.1594	21.1836	14.3705	10.9497	7.2809	5.6892
[·]-10	50.0000	43.9440	39.6511	33.0145	25.0260	20.2654	13.5942	10.2582	7.0385	5.1628
[·]-11	50.0000	41.1360	37.1115	30.9136	23.4248	18.7203	12.7812	9.5478	6.4523	5.0291
[·]-12	50.0000	37.2409	33.5946	27.9166	21.1402	16.8786	11.3230	8.6454	5.7261	4.4736
[·]-13	50.0000	31.9489	28.7922	24.0022	18.0230	14.3540	9.6154	7.3421	4.9131	3.8419
[·]-14	50.0000	24.8885	22.1294	18.3662	13.7871	11.0362	7.3390	5.5413	3.6946	2.7682
[·]-15	50.0000	22.2222	13.4875	10.6574	7.9701	6.3473	4.2364	3.1793	2.1144	1.5746
[·]-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.

(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,

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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 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 certificate s for

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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:

	OS1
CR1 = CR0 ×
	OS0

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 options that by their terms will also be issued to Holders upon conversion of their Convertible Preferred Stock into

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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:

	(OS0+ X)
CR1 = CR0 ×	(OS0+ Y)

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:

	SP0
CR1 = CR0 × (SP0 – FMV)

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;

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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:

CR1 = CR0 ×	(FMV0 + MP0)
	MP0

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:

	SP0
CR1 = CR0 ×	(SP0 -C)

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;

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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:

	(AC + (SP1 × OS1 ))
CR1 = CR0 ×	(SP1 x OS0)

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.

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(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.

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(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

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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 th e 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 Per son. 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

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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 da te 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 Hold ers 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

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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 majo rity 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 1 5(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 1 5(b)(iv) or 1 5(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 1 5(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 1 5(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 o f 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

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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 1 5(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 1 5(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 c lass 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 Dire ctor”.

(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 1 5(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 1 5(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 Pr eferred 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

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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 1 5(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 t o Section 1 5(d)(iv) or 1 5(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 1 5(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

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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 remaini ng 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.

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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 Compa ny 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.

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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 Tengelmann Party; provided that the Transfer Agent shall exchange Series A-Y Convertible

92

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.

93

IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to be duly executed this [·]th day of July, 2009.

		THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
		By:
			Name:
			Title:
ATTEST:
By:
	Name:
	Title:

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 [·], 2009, BY AN D 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 JULY [·], 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 OFF ICE](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 July     , 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.

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 July       , 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)o 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)o pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);

(3)o outside the United States in a transaction complying with Regulation S under the Securities Act; or

(4)o 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:

C-1

cc:The Great Atlantic & Pacific Tea Company, Inc

[                                    ]

              ,        [              ]

Attn: [                           ]

C-2

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 July       , 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)o 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)o pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);

(3)o outside the United States in a transaction complying with Regulation S under the Securities Act;

(4)o 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)o 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:

D-1

Exhibit D

Dated:

cc:The Great Atlantic & Pacific Tea Company, Inc

[                                    ]

              ,        [              ]

Attn: [                           ]

D-2

EXHIBIT B

Amended and Restated Stockholder Agreement

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 July       , 2009

S-106

Table of Contents

	Page
ARTICLE I
Definitions
SECTION 1.01. Definitions	S-111
ARTICLE II
Corporate Governance; Information Rights and Stockholder Representative
SECTION 2.01. Composition of the Board of Directors	S-122
SECTION 2.02. Information Rights	S-126
SECTION 2.03. Committees	S-126
SECTION 2.04. Solicitation of Shares	S-127
SECTION 2.05. Approval Required for Certain Actions	S-127
SECTION 2.06. Stockholder Representative	S-130
SECTION 2.07. VCOC Information Rights/Management Rights	S-130
SECTION 2.08. Labor Consultant	S-131
SECTION 2.09. Charter and By-Laws	S-132
SECTION 2.10. Change in Law	S-132
ARTICLE III
Registration Rights
SECTION 3.01. Registration	S-132
SECTION 3.02. Piggyback Registration	S-134
SECTION 3.03. Reduction of Underwritten Offering	S-135
SECTION 3.04. Registration Procedures	S-136
SECTION 3.05. Conditions to Offerings	S-140
SECTION 3.06. Blackout Period	S-141
SECTION 3.07. Registration Expenses	S-142
SECTION 3.08. Indemnification; Contribution	S-142
SECTION 3.09. Lockup	S-145
SECTION 3.10. Termination of Registration Rights	S-146
SECTION 3.11. Specific Performance	S-146
SECTION 3.12. Other Registration Rights	S-146
SECTION 3.13. Rule 144	S-146
SECTION 3.14. Transfer of Registration Rights	S-147
ARTICLE IV
Preemptive Rights
SECTION 4.01. Rights To Purchase New Equity Securities	S-147

S-107

ARTICLE V
Standstill, Acquisitions of Securities and Other Matters
SECTION 5.01. Acquisitions of Common Stock	S-148
SECTION 5.02. No Participation in a Group or Solicitation of Proxies	S-149
SECTION 5.03. Convertible Note Purchase	S-150
ARTICLE VI
Restrictions on Transferability of Securities
SECTION 6.01. General	S-151
SECTION 6.02. Hedging Transactions	S-153
SECTION 6.03. No Transfer to a Grocery Retailer	S-153
SECTION 6.04. Improper Transfer or Encumbrance	S-153
SECTION 6.05. Tag-Along Rights	S-153
SECTION 6.06. Right of First Offer	S-155
SECTION 6.07. Restrictive Legend	S-156
ARTICLE VII
Covenants
SECTION 7.01. Stockholder Approvals	S-157
SECTION 7.02. Voting Agreement	S-159
SECTION 7.03. Petition for Bankruptcy	S-159
ARTICLE VIII
Miscellaneous
SECTION 8.01. Certain Opportunities	S-159
SECTION 8.02. Adjustments	S-161
SECTION 8.03. Notices	S-161
SECTION 8.04. Reasonable Efforts; Further Actions	S-163
SECTION 8.05. Consents	S-163
SECTION 8.06. Expenses	S-163
SECTION 8.07. Amendments; Waivers	S-163
SECTION 8.08. Interpretation	S-163
SECTION 8.09. Severability	S-164
SECTION 8.10. Counterparts	S-164
SECTION 8.11. Entire Agreement; No Third-Party Beneficiaries	S-164
SECTION 8.12. Governing Law	S-164
SECTION 8.13. Assignment	S-165
SECTION 8.14. Enforcement	S-165
SECTION 8.15. Termination; Survival	S-165

S-108

SECTION 8.16. Confidentiality	S-166
SECTION 8.17. No Joint and Several Liability	S-166
SECTION 8.18. No Liability of Partners	S-167

S-109

AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT dated as of July       , 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”);

S-110

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 1 3D 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

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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 1 3D 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 1 3D Group owning, directly or indirectly, 50% or more of the ou tstanding 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 1 3D Group (or the stockholders or other equity owners of any Third Party or members of a 1 3D 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 1 3d-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.

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“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.

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“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 the date hereof, 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

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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

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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.

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“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 Stockho lder 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 1 3D Group with Tengelmann or any of its Affiliates and (ii) Yucaipa and its Affiliates and any Person included in any 1 3D 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

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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 1 3D Group has acquired beneficial ownership of outstanding Equity Securities of the Company (other t han 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

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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 benefi cially 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

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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 1 3D 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 Sto ckholder, 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)

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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)

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 Stockhold er.

(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

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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; prov ided, 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, an y 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.

(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 b asis) 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 1 3D Group that includ es 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.

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(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 w ith 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 2.0 1(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 recommendation of such nominee by the Board of Directors would have been reasonably

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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 the reof (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 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

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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 outstand ing 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);

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(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;

(ii) the issuance of any Equity Security or any other stock or equity

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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.

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(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 Stockhol der 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 cor responding periods of the previous fiscal year and from the Company’s financial plan; (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 pursuant to the terms of any outstanding Indebtedness of the Company to prepare any of

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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 Sub sidiaries. 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 Boa rd 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 25 10.3-101, 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 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

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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 Sec urities 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)

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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 availa ble, 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 Securitie s) 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 mult iple 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 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

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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 port ion 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 Sect ion 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.

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

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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, t hat 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 th e 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 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

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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 t he 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 afforde d 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 n umber 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:

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(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 d oes 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;

(iv)     advise the Underwriters, if any, and Stockholder promptly and, if

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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 p ost-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

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(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 c ourt 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 c ertain 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 security holders, within the required time period, an earnings statement (which

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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

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(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 &# 147;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

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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 p ublic 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, actions and expenses (including reasonable attorneys’ fees) joint or several caused by any

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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 par ty; 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 a ssume 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

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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 req uested 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 settlem ent 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 proporti on 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 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 d eemed to include, subject to the limitations set forth in Section 3.08(c), any legal or other fees or expenses reasonably

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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 fro m 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 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

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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 Agreeme nt) 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).

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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 Direct ors, (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 Pre ferred 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 Securities proposed to be issued, the price (or method for determining price) thereof, the

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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 exercise, conversion and exchange of all Equity Securities of the Company, which are not Company Common Stock; provided, however, the following s hall not constitute a breach

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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 3 5.5% 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 rec eived 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 con trolled 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 1 3D 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 1 3D 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

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(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 1 3D 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 Conve rtible 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 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

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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 Stockho lder 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 principa l 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

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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, to 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 1 3D 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 1 3D 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.

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(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. F urther, 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

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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 Transfe r, 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 th e 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

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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

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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’ REPRESENT ATIVE REFERRED TO THEREIN AND AN AMENDED AND RESTATED STOCKHOLDER AGREEMENT, DATED AS OF JULY     , 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

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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

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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 Ap proval , 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     , 2010(1), 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 St ockholder’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.

(1) 1 year from closing.

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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, 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 w hich 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 sam e 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

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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 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 preexisting 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

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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 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 other wise 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

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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

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

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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.

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”

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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 success ors 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 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&nb sp;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

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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 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 it s 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 sitt ing 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

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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 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

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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 a ttach 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.

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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
	Name:
	Title:
YUCAIPA CORPORATE INITIATIVES FUND I, LP,
by
	Yucaipa American Alliance Fund II, LLC, its General Partner,
	Name:
	Title:
YUCAIPA AMERICAN ALLIANCE FUND I, LP,
by
	Yucaipa American Alliance Fund II, LLC, its General Partner,
	Name:
	Title:
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP,
by
	Yucaipa American Alliance Fund II, LLC, its General Partner,
	Name:
	Title:

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YUCAIPA AMERICAN ALLIANCE FUND II, LP,
by
	Yucaipa American Alliance Fund II, LLC, its General Partner,
	Name:
	Title:
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP,
by
	Yucaipa American Alliance Fund II, LLC, its General Partner,
	Name:
	Title:

S-169

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 II - 170

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	69,345
Yucaipa American Alliance (Parallel) Fund II, LP	0	0	45,655

Sch II - 171

Exhibit C

Opinion of Counsel

July [·], 2009

To the addressees listed on Exhibit A-1 and Exhibit A-2 attached to this opinion letter

Re:Issuance of Convertible Preferred Stock by The Great Atlantic &
Pacific Tea Company, Inc.

Ladies and Gentlemen:

We have acted as counsel to The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), in connection with the issuance of [·] shares of convertible preferred stock, Series A-T and [·] shares of convertible preferred stock, Series A-Y (the convertible preferred stock, Series A-T and Series A-Y together, the “Convertible Preferred Stock”) pursuant to (i) those certain Investment Agreements, each dated as of [July    , 2009] (each, an “Agreement” and together, the “Agreements”), by and among the Company, among others, and each of the addressees named on Exhibit A-1 and Exhibit A-2, respectively, attached hereto (the “Transaction”) and (ii) the other Transaction Documents (as defined below). This opinion letter is rendered at the Company’s request pursuant to Section 6.02(d) of the Agreements. All capitalized terms used in this opinion letter, without definition, have the meanings assigned to them in the Agreements.

In connection with this letter, we have examined executed originals or copies of executed originals of each of the documents listed on Exhibit B attached hereto (collectively, the “Transaction Documents”). In addition, we have examined the following documents (collectively, the “Due Diligence Documents”): (a) copies of the documents listed on Exhibit C attached hereto (collectively the “Constituent Documents” of the Company), (b) a certificate executed by the Company’s Secretary, dated as of [July    , 2009], certifying as to, among other things, resolutions approved at a meeting of the Company’s board of directors held on [July    , 2009] authorizing the execution and delivery of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby, (c) copies of the documents listed on Exhibit D attached hereto (the “Reviewed Documents”), and (d) an officer’s certificate of the Company dated as of [July    , 2009], certifying certain factual matters related to the delivery of this opinion.

We have examined originals or certified copies of such corporate records of the Company and other certificates of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter. As to various questions of fact relevant to this opinion letter, we have relied, without independent investigation, upon certificates of public officials, certificates of officers of the Company and representations and warranties of the Company in the Transaction Documents, where applicable, all of which we assume to be true, correct and complete. We have made no investigation or review of any matters relating to the Company or any other Person other than as expressly listed herein. We wish to inform you that our knowledge is necessarily limited due to the limited scope of our review. In addition, we have made no inquiry of the Company or any other individual, partnership , limited liability company, corporation, association, joint stock company, trust, entity, joint venture, labor organization, unincorporated organization, or governmental authorities (each, a “Person”) regarding, and no review of, any judgments, orders, decrees, franchises, licenses, certificates, permits or other public records, other than the officer’s certificate described above, and our “knowledge” of any such matters is accordingly limited.

We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all copies submitted to us as conformed, certified or reproduced copies, and the conformity of the certificates for the Convertible Preferred Stock to the specimen[s] thereof we have reviewed. We have also assumed (i) the legal capacity of natural Persons, (ii) the corporate or other power and valid and due authorization of each Person not a natural person to execute and deliver the Transaction Documents and to consummate the transactions contemplated by the Transaction Documents, (iii) the due execution and delivery of each Transaction Document by all parties thereto and (iv) that each Transaction Document constitutes the legal, valid and binding obligation of each party thereto other than the Company, enforcea ble against such party in accordance with its terms.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that:

1.The Agreements constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.

2.The execution and delivery of the Transaction Documents by the Company do not, and the performance by the Company of the transactions contemplated thereby, including, without limitation, the issuance and sale of the Convertible Preferred Stock, do not and will not (a) result in any violation of law, rule or regulation of any Included Laws (as defined below) or (b) breach or result in a default of the Amended and Restated Credit Agreement dated as of December 27, 2007, by and among the Company, the other borrowers party thereto, the lenders party thereto, and Bank of America, N.A., as administrative agent and collateral agent, as amended by the First Amendment To Amen ded and Restated Credit Agreement dated as of April 4, 2008 as amended by the Second Amendment To Amended and Restated Credit Agreement dated as of July    , 2009 (the “Amended and Restated Credit Agreement”) or any of the Reviewed Documents.

3.No consent, authorization or approval or other action by, and no notice to or filing with, any U.S. Federal or State of New York governmental authority or agency is required to be obtained or made by the Company under the Included Laws for the due execution and delivery of the Agreements by the Company and the performance by the Company of its obligations contemplated by the Transaction Documents, except for (i) those which have already been obtained, (ii) filings required under Federal or state securities laws with respect to the transactions contemplated by the Transaction Documents and (iii) routine filings necessary in connection with the conduct of the business of th e Company. Our opinion herein is otherwise subject to

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the timely and proper completion of all filings and other actions contemplated herein where such filings and actions are to be undertaken on or after the date hereof.

4.Assuming that the representations and warranties of the parties thereto in the Investment Agreements are true and assuming compliance by the parties thereto with their respective covenants and agreements set forth therein and assuming no actions having been or being taken by the parties thereto (other than the Company) or Tengelmann which would require registration of the Investor Shares under the Securities Act of 1933, as amended, it is not necessary in connection with the offer, sale and delivery of the Investor Shares to the Investors pursuant to the Investment Agreements to register the Investor Shares under the Securities Act of 1933, as amended; it being understood that we do not express any opinion as to any subsequent reoffer or resale of such Investor Shares.

The opinions and other matters in this opinion letter are qualified in their entirety and subject to the following:

A.We express no opinion as to the laws of any jurisdiction other than the Included Laws. We have made no special investigation or review of any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”), or any judgments, decrees, franchises, certificates, permits or the like, other than a review of (i) public records as specifically listed herein, (ii) the Laws of the State of New York or (iii) the Federal Laws of the United States of America. For purposes of this opinion, the term “Included Laws” means the items descr ibed in clauses (ii) and (iii) of the preceding sentence that are, in our experience, normally applicable to transactions of the type contemplated in the Transaction Documents. The term Included Laws specifically excludes (a) Laws of any counties, cities, towns, municipalities and special political subdivisions and any agencies thereof; (b) zoning, land use, building and construction Laws; (c) Federal Reserve Board margin regulations; (d) any antifraud, environmental, labor, tax, insurance, antitrust, or intellectual property Laws; (e) any Laws that may be applicable to the Company and its subsidiaries by virtue of the particular nature of the business conducted by them or any goods or services provided by them or property owned or leased by them and (f) Federal or state securities or blue sky Laws (other than as set forth in paragraph 4 above).

B.When used in this letter, the phrases “known to us”, “knowledge”, “to our actual knowledge”, “of which we are aware” and similar phrases (i) mean the conscious awareness of facts or other information by (a) the lawyer in our firm who signed this letter, (b) any lawyer in our firm actively involved in negotiating and preparing the Transaction Documents and (c) solely as to information relevant to a particular opinion, issue or confirmation regarding a particular factual matter, any lawyer in our firm who is pri marily responsible for providing the response concerning that particular opinion, issue or confirmation and (ii) do not require or imply (a) any examination of this firm’s, such lawyer’s or any other person’s or entity’s files, (b) that any

3

inquiry be made of the client, any lawyer (other than the lawyers described above), or any other person or entity or (c) any review or examination of any agreements, documents, certificates, instruments or other papers other than the Transaction Documents, the Due Diligence Documents and the Reviewed Documents.

C.This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other Person, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.

D.For purposes of this opinion letter, the phrase “transactions contemplated by the Transaction Documents” and similar phrases mean (i) transactions contemplated by the Transaction Documents and (ii) the performance by the Company of its obligations under the Transaction Documents.

E.The matters expressed in this opinion letter are subject to and qualified and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, (ii) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief (regardless of whether enforcement is sought in a proceeding at law or in equity), (iii) commercial reasonableness and unconscionability and an implied covenant of good faith and fair dealing, (iv) the power of the courts to award da mages in lieu of equitable remedies and (v) securities Laws and public policy underlying such Laws with respect to rights to indemnification and contribution. Although it appears that the requirements of Section 5-1401 of the New York General Obligations Law have been met, we express no opinion as to whether the choice of law provisions in the Transaction Documents, as applicable, would raise any issues under the U.S. constitution or in equity that would affect whether a New York court would enforce the choice of New York law to govern the respective Transaction Documents.

F.We express no opinion as to (i) the compliance of the transactions contemplated by the Transaction Documents with any regulations or governmental requirements applicable to any party other than the Company, (ii) the financial condition or solvency of the Company, (iii) the ability (financial or otherwise) of the Company or any other party to meet their respective obligations under the Transaction Documents, (iv) the compliance of the Transaction Documents or the transactions contemplated thereby with, or the effect of any of the foregoing with respect to, the anti-fraud provisions of the Federal and state securities laws, rules and regulations, (v) the conformity of the Transaction Do cuments to any term sheet or commitment letter, (vi) any

4

provision of any Transaction Document if and to the extent that such provision (a) is a liquidated damages provision, to the extent that such provision constitutes a penalty or forfeiture or is

otherwise contrary to public policy or (b) provides a remedy for breach that may be deemed to be disproportionate to actual damages or may be deemed to be a penalty and (vii) the enforceability of any provisions contained in the Transaction Documents purporting to indemnify a person for gross negligence, willful misconduct or strict liability; prohibit oral amendments to or waivers of provisions of the Transaction Documents or otherwise limit the effect of a course of dealing between the parties thereto; waive objections based on venue or inconvenient forum as to any court; or otherwise restrict, vary or waive access to legal or equitable remedies or defenses (including, without limitations, rights to notice of and hearing on matters relating to service of process).

G.We have assumed that (i) the Tengelmann Parties, on the one hand, and the Yucaipa Parties, on the other hand (each as defined in the Articles Supplementary), are not acting, and upon and after the execution and delivery of the Transaction Documents, will not act as a “group” as defined under Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended, (ii) to the extent that dividends on the Convertible Preferred Stock are paid in cash, as contemplated by Section 4 of the Articles Supplementary, that such dividends are paid in compliance with Section 6.08(a)(i) of the Amended and Restated Credit Agreement and, to the extent such dividends are paid in shares of additiona l Convertible Preferred Stock, that such payment does not result in the Yucaipa Parties beneficially owning more than a majority of the voting power represented by the Company’s outstanding capital stock entitled to vote in the election of directors, (iii) that the directors contemplated to be elected or appointed pursuant to Section 1 5 of the Articles Supplementary will constitute Continuing Directors as defined in the Amended and Restated Credit Agreement and in the Indenture pursuant to which the Senior Secured Notes are issued, (iv) that any transactions between the Company or its Subsidiaries, on the one hand, and any of the Yucaipa Parties or the Tengelmann Parties, on the other hand (other than the issuance of the Convertible Preferred Stock and the payment of fees in connection therewith) are at prices and on terms and conditions that are not less favorable to the Company than those that could be obtained on an arm’s length basis from unrelated third parties, (v) the ad option of the amendments to the Company’s Bylaws as contemplated by the Transaction Documents are not materially adverse to the lenders under the Amended and Restated Credit Agreement and (vi) the terms of the Indenture pursuant to which the Senior Secured Notes are issued are not materially different than the terms of the Description of Notes contained in the preliminary offering memorandum for the Senior Secured Notes.(1)

H.We have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed in this letter. We have assumed that the meanings specified in contracts having a governing law other

(1) To be removed in final opinion.

5

than an Included Law would be what attorneys would customarily understand them to mean if the governing law was the laws of the State of New York.

I.This letter is solely for your benefit, and no other Persons shall be entitled to rely upon this letter. Without our prior written consent, this opinion letter may not be quoted in whole or in part or otherwise referred to in any document and may not be furnished or otherwise disclosed to or used by any other Person, except for (i) delivery of copies hereof to counsel for the addressees hereof, (ii) inclusion of copies hereof in a closing file and (iii) use hereof in any legal proceeding arising out of the transactions contemplated by the Transaction Documents filed by an addressee hereof against this law firm or the Company or in which any addressee hereof is a defendant.

Very truly yours,

AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.

6

EXHIBIT A-1

ADDRESSEES

YUCAIPA CORPORATE INITIATIVES FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE FUN]) II, LP

YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUN]) II, LP

YUCAIPA AMERICAN ALLIANCE FUN]) II, LLC, as Investor’s Representative

Exhibit A-1

EXHIBIT A-2

ADDRESSEES

TENGELMANN WARENHANDELS-GESELLSCHAFT KG

Exhibit A-2

EXHIBIT B
TRANSACTION DOCUMENTS

(a)The Agreements and the disclosure schedules related thereto.

(b)Amended and Restated Yucaipa Stockholder Agreement.

(c)Amended and Restated Tengelmann Stockholder Agreement.

Exhibit B

EXHIBIT C
CONSTITUENT DOCUMENTS

(a)Articles of Amendment and Restatement of the Articles of Incorporation of the Company signed by the Company on July 1, 2008, as supplemented by the Articles Supplementary and as further amended (the “Charter”), certified on [·], 2009 by the [Secretary of State of the State of Maryland].

(b)By-Laws of the Company (the “Bylaws”) attached as Exhibit 3.2 to the Company’s Report on Form 10-K/A filed with the Securities and Exchange Commission on July    , 2009 as amended on            , 2009.

(c)Convertible Preferred Articles Supplementary (after giving effect to the filing of the
Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland (the “Articles Supplementary”)).

Exhibit C

EXHIBIT D
REVIEWED DOCUMENTS

·Indenture, dated as of January 1, 1991, by and between The Great Atlantic & Pacific Tea Company, Inc. and Manufacturers Hanover Trust Company, trustee

·Form of Global Security (attached as Exhibit I to the Authorizing Resolutions adopted by the Pricing Committee of the Board of Directors of The Great Atlantic & Pacific Tea Company, Inc. on August 4, 1999 relating to $200,000,000 Aggregate Principal Amount of 9 3/8% Senior Quarterly Interest Bonds due 2039)

·Second Supplemental Indenture, dated as of December 20, 2001, by and between The Great Atlantic & Pacific Tea Company, Inc. and JPMorgan Chase Bank, trustee, relating to the 9 1/8% Senior Notes due 2011

·Fourth Supplemental Indenture, dated as of August 23, 2005, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company (successor to JPMorgan Chase Bank), trustee, relating to the 9 1/8% Senior Notes due 2011

·Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee

·First Supplemental Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee, relating to the 5.125% Convertible Senior Notes Due 2011

·Second Supplemental Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee, relating to the 6.75% Convertible Senior Notes Due 2012

·[The Indenture pursuant to which the Senior Secured Notes are to be issued]

Exhibit D

Exhibit D

Opinion of Maryland Counsel

[               ], 2009

Yucaipa American Alliance Fund II, LP

Yucaipa American Alliance (Parallel) Fund II, LP

Yucaipa American Alliance Fund II, LLC, as Investors’ Representative

9130 W. Sunset Boulevard

Los Angeles, California 90069

who are collectively referred to herein as the “Yucaipa Addressees”;

and

Tengelmann Warenhandels-Gesellschaft KG

Wissollstrasse 5-43

D-45478 Mülheim an der Ruhr

Germany

Attention:	Mr. Christian Haub
	Dr. Frank Hartmann

who is referred to herein as the “Tengelmann Addressee”.

Re:	The Great Atlantic & Pacific Tea Company, Inc.
	Issuance of 8% Cumulative Convertible Preferred Series A-Y and Series A-T Stock

Ladies and Gentlemen:

We have acted as special Maryland counsel to The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), in connection with the issuance of (a) 115,000 shares of Series A-Y Convertible Preferred Stock due July [J, 2016 (the “Series A-Y Issuance”) pursuant to that certain Investment Agreement dated July [j, 2009 by and among the Company and the Yucaipa Addressees (the “Yucaipa Agreement”) and (b) 60,000 shares of Series A-T Convertible Preferred Stock due July [J, 2016 (the “Series A-T Issuance”, and together with the Series A-Y Issuance, collectively, the “Transaction”) by the Company pursuant to that certain Investment Agreement dated July [J, 2009 by and among the Company and the Tengelmann Addressee (the  7;Tengelmann Agreement”, and together with the Yucaipa Agreement, collectively, the “Agreements”). This opinion letter is provided pursuant to Section 6.02(d) of the Agreements. Each capitalized term used and not defined herein shall have the meanings provided in the Agreements.

Documents Reviewed

In connection herewith, we have examined, among other things, originals or copies, certified or otherwise identified to our satisfaction, of the following:

(a)the Agreements and the Company Disclosure Letters provided in relation thereto;

(b)that certain Amended and Restated Yucaipa Stockholder Agreement dated as of [   ], 2009, by and among the Company, the Yucaipa Addressees and the other parties thereto (the “Yucaipa Stockholder Agreement”);

(c)that certain Amended and Restated Tengelmann Stockholder Agreement dated as of [   ], 2009, by and among the Company, the Tengelmann Addressee and the other parties thereto (the “Tengelmann Stockholder Agreement” and together with the Agreements and the Yucaipa Stockholder Agreement, collectively, the “Transaction Documents”);

(d)the Articles of Amendment and Restatement of the Articles of Incorporation of the Company as filed with, and accepted for record by, the State Department of Assessments and Taxation of Maryland on July 1, 2008 (the “Charter”);

(e)the By-Laws of the Company, as amended to date and including the Company By-Laws Amendment (the “By-Laws” and, together with the Charter, collectively, the “Company Organizational Documents”) certified by an officer of the Company in the Company Certificate;

(f)Articles Supplementary designating 8% Cumulative Convertible Preferred Stock, Series A-T, of the Company, 8% Cumulative Convertible Preferred Stock, Series A-Y, of the Company, 8% Cumulative Convertible Preferred Stock, Series B-T, of the Company, and 8% Cumulative Convertible Preferred Stock, Series B-Y, of the Company (filed with, and accepted for record by, the State Department of Assessments and Taxation of Maryland, the “Articles Supplementary”);

(g)those certain resolutions by the Board of Directors of the Company and by the Committee of Independent Directors, the Audit & Finance Committee, the Governance Committee and the Human Resources and Compensation Committee of the Board of Directors relating to the transactions contemplated by the Agreements (collectively, the “Authorizing Resolutions”);

(h)a Certificate of Status for the Company issued by the State Department of Assessments and Taxation of Maryland dated [   ], 2009 (the “Certificate of Status”);

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(i)a certificate of officer(s) of the Company, a copy of which is attached hereto as Exhibit A, certifying as to certain factual matters (the “Company Certificate”);

(j)a form of share certificate for the Shares, attached as an exhibit to the Articles Supplementary (the “Form Stock Certificate”);

(k)a Consent and Waiver to Stockholder Agreement dated [   ], 2009 (the “Tengelmann Waiver”) by the Tengelmann Addressee to the Company waiving certain of its rights under that certain Stockholder Agreement dated March 4, 2007 by and between the Company and Tengelmann Addressee and the By-Laws of the Company in effect as of January 17, 2008; and

(l)such other certificates, records and copies of executed originals, final forms and draft forms of documents as we deemed necessary for the purpose of this opinion.

As used herein, “Maryland General Corporation Law” shall mean Title 1 through Title 3 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended; and “Stock” shall mean the Shares issued in, and the Underlying Securities issued pursuant to, the Transaction.

Assumptions

For all purposes of the opinions expressed herein, we have assumed, without independent investigation, the following:

(a)Factual Matters. All certifications, representations, warranties and assurances set forth in (i) the Company Certificate and other certificates of the Company or authorized representatives thereof, (ii) the Transaction Documents, and (iii) the certificates and assurances from public officials, are in all cases true, complete and accurate with respect to the matters set forth therein;

(b)Contrary Knowledge of Addressee. No addressee of this opinion letter has any actual knowledge that any of our factual assumptions or opinions are inaccurate;

(c)Signatures. The signatures of individuals signing the Transaction Documents and the documents contemplated thereby are genuine and (other than individuals signing on behalf of the Company) authorized;

(d)Certificates. Each individual executing a certificate is authorized to do so and has knowledge of all matters stated therein and each such certificate is accurate and complete;

(e)Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete and accurate, all documents submitted to us as copies conform

3

to authentic original documents and all documents submitted as form, precedent or specimen documents are complete and accurate in all respects to the actual documents they are purported to be the form, precedent or specimen of and that are actually executed and delivered by the parties;

(f)Capacity of Certain Parties. With the exception of the Company, all parties to the Transaction Documents have the capacity and full power and authority to execute, deliver and perform the Transaction Documents and the documents required or permitted to be delivered and performed thereunder;

(g)Documents Binding on Certain Parties. With the exception of the Company, the Transaction Documents and the documents contemplated thereby have been duly authorized by all necessary corporate or other action on the part of the parties thereto and have been duly executed and delivered by such parties. The Agreements and, except with respect to the Company, the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement, are legal, valid and binding obligations of the parties thereto enforceable a gainst the parties thereto in accordance with their terms;

(h)Noncontravention. With the exception of the Company, neither the execution and delivery of the Transaction Documents and the documents contemplated thereby by any party thereto, nor the compliance by any party thereto with the terms and provisions thereof will conflict with or result in any breach of (i) any law or regulation of any jurisdiction, or (ii) any order, writ, injunction or decree of any court or governmental instrumentality or agency;

(i)Consents for Certain Parties. All necessary consents, authorizations, approvals, permits or certificates (governmental and otherwise) which are required as a condition to the execution and delivery of the Transaction Documents by the parties thereto and to the consummation by such parties of the transactions contemplated thereby (other than any such consents, authorizations, approvals, permits or certificates required under Maryland law as to the Company) have been obtained;

(j)Accurate Description of Parties’ Understanding. The Transaction Documents accurately describe and contain the mutual understanding of the parties, and there are no oral or written statements or agreements that modify, amend or vary, or purport to modify, amend or vary any of the terms thereof;

(k)Completion of Transaction Documents. All blanks in the Transaction Documents and other documents reviewed by us have been completed and all exhibits and schedules have been attached thereto;

(l)  Approvals; Filing of Documents. Prior to the conversion of any of the Stock (except in accordance with the limitations in clauses (a) and (b) of Section 7 of the Articles Supplementary) or declaration of a dividend payable in the form of securities of the Company, in

4

whole or in part (except in each case, to the extent that there is sufficient Stock available under the Charter to effect such conversion or dividend), the (i) Charter will have been amended to authorize an amount of Common Stock sufficient to satisfy the Company’s obligations under the Transaction Documents and the Articles Supplementary (the “Charter Amendment”), and such amendment will have been approved by all necessary stockholder action and filed with, and accepted of record by, the State Department of Assessments and Taxation of Maryland, and (ii) Conversion Stockholder Approval will have been obtained; and

(m)  Miscellaneous. (i) Consideration for the issuance of all securities of the Company since March 18, 1994 has been or will be received prior to the issuance of such securities in an amount not less than the amount set forth in the documents governing the purchase and sale of such issuances, including without limitation any resolutions of the Board of Directors of the Company, the Transaction Documents and the Authorizing Resolutions, and consists in whole or in part of money, tangible or intangible property, labor or services actually performed for the Company, a promissory note or other obligation for future payment in money, or contracts for labor or services to be performed, (ii) the Stock will be issued and sold in compliance with all applicable federal and state securities laws, (iii) the Company has taken action to evidence ownership of the all sec urities issued by the Company since March 18, 1994 and the Stock in accordance with the Maryland General Corporation Law, (iv) the Company does not engage or propose to engage in any industry, business or activity, or own any property or asset, that causes or would cause it to be subject to special local, state or federal regulation not applicable to business corporations generally, (v) the Tengelmann Waiver constitutes a valid waiver of any pre-emptive or similar rights of Tengelmann in or to securities of the Company, and (vi) any shares issued pursuant to the Convertible Preferred Stock PIK Dividend Provision (as defined in the Articles Supplementary) will only be issued following the due authorization and declaration of a dividend by the Board of Directors of the Company in accordance with the Maryland General Corporation Law.

Opinions

Based on and subject to the foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that:

1.Based solely upon the Certificate of Status, the Company is validly existing as a corporation in good standing under the laws of the State of Maryland, the jurisdiction of its incorporation, as of the date set forth in the Certificate of Status.

2.The Company has the corporate power and authority to enter into, execute, deliver and perform its obligations under each of the Transaction Documents, to validly issue the Stock, to execute and file the Articles Supplementary, and to own, lease and operate its properties and assets, and to carry on its business as described in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on May 12, 2009. The Articles Supplementary have been duly authorized by all necessary corporate action on the part of the Company, have been duly exec uted and filed with, and accepted for record by, the State

5

Department of Assessments and Taxation of Maryland, and are effective under the Maryland General Corporation Law.

3.The authorized capital stock of the Company consists of 163,000,000 shares of which (a) 160,000,000 shares are common stock, par value $1.00 per share and (b) 3,000,000 shares are preferred stock, without par value, of which (i) 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock Series A-T, 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock Series A-Y, 350,000 shares have been classified and designated as 8% Cumulative Convertible Prefer red Stock Series B-T and 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock, Series B-Y. All shares of Common Stock issued since March 18, 1994 that are currently outstanding have been duly authorized and validly issued and are fully paid and non-assessable.

4.Each of the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its respective terms.

5.The Investor Shares described in the Yucaipa Agreement (consisting of 115,000 shares of Cumulative Convertible Preferred Stock, Series A-Y) have been duly authorized for issuance and sale by the Company pursuant to the Yucaipa Agreement by all necessary corporate action, and when issued and delivered by the Company in exchange for payment of the consideration therefor in accordance with the Yucaipa Agreement, will be validly issued, fully paid and non-assessable, and the issuance and sale of such Shares to the Investors (as defined in the Yucaip a Agreement) is not, and will not, be subject to any pre-emptive or similar rights under the Maryland General Corporation Law or the Charter or By-Laws.

6.The Investor Shares described in the Tengelmann Agreement (consisting of 60,000 shares of Cumulative Convertible Preferred Stock, Series A-T) have been duly authorized for issuance and sale by the Company pursuant to the Tengelmann Agreement by all necessary corporate action, and when issued and delivered by the Company in exchange for payment of the consideration therefor in accordance with the Tengelmann Agreement, will be validly issued, fully paid and non-assessable, and the issuance and sale of such Shares to the Investors (as defined in th e Tengelmann Agreement) is not, and will not, be subject to any preemptive or similar rights under the Maryland General Corporation Law or the Charter or By-Laws.

7.The Underlying Securities have been duly authorized and reserved for issuance by all necessary corporate action, and when issued and delivered by the Company upon conversion of the Shares in accordance with and subject to the terms and conditions set forth in the Articles Supplementary, the Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any pre-emptive or similar rights arising by operation of the Maryland General Corporation Law or the Charter or By-Laws.

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8.The Shares issuable pursuant to the Convertible Preferred Stock PIK Dividend Provision of the Articles Supplementary (the “Preferred Dividend Underlying Securities”) have been duly and validly authorized, and when issued and delivered by the Company as dividends on the Shares upon the invocation by the Company of the Convertible Preferred Stock PIK Dividend Provision (as defined in the Articles Supplementary) and following due authorization and declaration of a dividend by the Board of Directors in accordance with the Maryland Genera l Corporation Law, such Preferred Dividend Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights arising by operation of the Maryland General Corporation Law or the Charter or By-Laws.

9.The execution and delivery by the Company of each of the Transaction Documents has been duly authorized by all requisite corporate action by the Company. The Company has duly executed and, to our knowledge, delivered each of the Transaction Documents. The performance of the Transaction Documents has been duly authorized by all necessary corporate action of the Company.

10.The execution and delivery of the Transaction Documents by the Company, the issuance and sale of the Shares by the Company to the Investors pursuant to the Investment Agreements and the performance of the obligations of the Company under the Transaction Documents do not:

(a)violate the Company’s Organizational Documents;

(b)violate or contravene any provision of the Maryland General Corporation Law or any other Applicable Law or, to our knowledge, any Maryland court order applicable to the Company; or

(c)require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority, under any Maryland statute, rule or regulation applicable to the Company on or prior to the date hereof that have not been obtained or made.

As used herein, “Applicable Laws” means those laws, rules, regulations or governmental authorities of the State of Maryland (excluding those of counties, cities, and other municipalities, and any local governmental agencies) that we, in the exercise of customary professional diligence, would reasonably recognize as being applicable to the Company and the transactions contemplated by the Transaction Documents.

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11.The Form Stock Certificate is consistent with the requirements for stock certificates set forth in the Maryland General Corporation Law.

12.The Company By-Laws Amendment has been duly authorized and approved by all necessary corporate action of the Company, and is effective as an amendment to the Company’s By-Laws in accordance with the Maryland General Corporation Law.

13.   The Series A Convertible Preferred Stock of each series and the Series B Convertible Preferred Stock of each series have the designations, voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption, restrictions and other terms set forth in the Articles Supplementary, and such voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption, restrictions and other terms do not conflict with or violate any provision of the Maryland General Corporation Law or the Company Organizational Documents, as supplemented by such Articles Supplementary.

Exclusions

We express no opinion with respect to the following matters:

(a)Indemnification and Change of Control. Any agreement of the Company in the Transaction Documents or the Articles Supplementary relating to indemnification, contribution or exculpation from costs, expenses or other liabilities or to changes in the organizational control or ownership of the Company, to the extent that any such agreement is contrary to public policy or applicable law;

(b) Jurisdiction; Venue, etc. The enforceability in any court of any agreement of Company (i) to submit to the jurisdiction of any specific federal or state court, (ii) to waive (A) any objection to the laying of the venue, (B) the defense of forum non conveniens in any action or proceeding or (C) trial by jury, (iii) to effect service of process in any particular manner, (iv) to establish evidentiary standards, or (v) regarding the choice of law governing the Transaction Documents;

(c)  Certain Laws. Federal laws and regulations, securities and “Blue Sky” laws or regulations, banking laws and regulations, pension and employee benefit laws and regulations, environmental laws and regulations, tax laws and regulations (except as otherwise expressly provided in this opinion letter), health and occupational safety laws and regulations, building code, zoning, subdivision and other laws and regulations governing the development, use and occupancy of real property, antitrust and unfair competition laws and regulations, the Assignment of Claims Act and the effect of any of the foregoing on any of the opinions expressed;

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(d)Local Ordinances. The ordinances, statutes, administrative decisions, orders, rules and regulations of any municipality, county, special district or other political subdivision of the State of Maryland;

(e)Incorporated Documents. Any document or instrument other than the Transaction Documents, notwithstanding it being referenced in any of the Transaction Documents, or as to the interplay between the Transaction Documents and any such other document or instrument; and

(f)Issuance of Stock in Excess of Securities Available under the Charter. The conversion, issuance or reservation of any Stock to the extent that there are insufficient shares of common stock or preferred stock of the Company available for issuance or reservation under the Charter at the time of such conversion or issuance.

(g)Restricted Distributions. Any distribution (as defined in Section 2-301 of the Maryland General Corporation Law) in violation of the limitations provided in Section 2-311 of the Maryland General Corporation Law.

Qualifications and Limitations

The opinions set forth above are subject to the following qualifications and limitations:

(a)Applicable Law. Our opinions are limited to the laws of the State of Maryland, and we do not express any opinion concerning any other law;

(b)Bankruptcy. Our opinions are subject to the effect of any applicable bankruptcy, insolvency (including, without limitation, laws relating to preferences, fraudulent transfers or conveyances and equitable subordination), reorganization, moratorium and other similar laws affecting creditors’ rights generally;

(c)Equitable Principles. Our opinions are subject to the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. In applying such principles, a court, among other things, might limit the availability of specific equitable remedies (such as injunctive relief, the remedy of specific performance and/or the appointment of a receiver) or might not allow a part y to exercise remedies upon the occurrence of a default deemed immaterial;

(d)Corporate Power, Noncontravention and Government Approvals. Our opinions expressed in paragraphs 2 and 10 are limited to (i) our actual knowledge, if any, of any of the Company’s business activities and properties based solely on the Company Certificate in respect of such matters without independent investigation or verification on our part and (ii) our

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review of only those laws and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents;

(e)Knowledge. Whenever our opinions or qualifications are stated to be “to our knowledge” or “known to us” (or words of similar import), it means the actual knowledge of the particular McGuireWoods LLP attorneys who have represented the Company in connection with the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement. Except as expressly set forth herein, we have not undertaken any independent investigation (including, without limitation, conducting any review, search or investigation of any public files or records or dockets or any review of our files) to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn from our reliance on the same in connection with the preparation and delivery of this opinion letter;

(f)Material Changes to Terms. Provisions in the Transaction Documents which provide that any obligations of the Company thereunder will not be affected by amendment or waiver of the provisions contained in the Transaction Documents might not be enforceable under circumstances in which such action, failure to act, amendment or waiver so materially changes the essential terms of the obligations that, in effect, a new contract has arisen between the Company and any party to the Transactions Documents; and

(g)Mathematical Calculations. We have made no independent verification of any of the numbers, schedules, formulae or calculations in the Transaction Documents or the Articles Supplementary, and we render no opinion with regard to the accuracy, validity or enforceability of any of them.

(h)Reliance on Certain Items. Our opinion in paragraph 9 that the Company has duly executed each of the Transaction Documents is based solely on our review of the Company Certificate, the Authorizing Resolutions and electronic copies of the executed Transaction Documents.

Miscellaneous

The foregoing opinions are being furnished to the addressees for the purpose referred to in the first paragraph of this opinion letter, and this opinion letter is not to be furnished to any other person or entity or used or relied upon for any other purpose without our prior written consent. The opinions are based upon currently existing facts and circumstances and Maryland statutes, rules and regulations and on Maryland judicial decisions and are rendered and being delivered to you as of the date hereof and we disclaim any obligation to advise you of any change in any of the foregoing sources of law or subsequent developments in law or changes in facts or circumstances which might affect any matters or opinions set forth herein. The headings and titles to paragraphs of sections of this opinion letter are for convenience of reference only and are not construed to have any effect or meanin g with respect to such paragraphs or sections.

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Very truly yours,

11

Exhibit A

The Great Atlantic & Pacific Tea Company, Inc.

Company Certificate

Effective as of [  ], 2009

Reference is made to the opinion letter of McGuireWoods LLP (the “Opinion Letter”) delivered in connection with those certain Investment Agreements, each dated July [  ], 2009 (collectively, the “Investment Agreements”) among (1) The Great Atlantic & Pacific Tea Company, Inc. (the “Company”) and the Yucaipa Addressees (as defined in the Opinion Letter) relating to the issuance by the Company of 115,000 shares of Series A-Y Convertible Preferred Stock due July [  ], 2016, and (2) the Company and the Tengelmann Addressee (as defined in the Opinion Letter) relating to the issuance by the Company of 60,000 shares of Series A-T Convertible Preferred Stock due July [  ], 2016. Capitalized terms used and not defined in this Certificate have the meanings provided in the Opinion Letter.

The undersigned officer of the Company certifies, in connection with the execution, delivery and performance by the Company of the Transaction Documents, the consummation of the transactions contemplated by the Transaction Documents and issuance by McGuireWoods LLP of the Opinion Letter, as follows:

1.Attached hereto as Exhibit A is a true and correct copy of the Charter of the Company as presently in effect on the date of the Opinion Letter and on file with the State Department of Assessments and Taxation of Maryland.

2.Attached hereto as Exhibit B is a true and correct copy of the Amended and Restated By-Laws of the Company as presently in effect on the date of the Opinion Letter.

3.Attached hereto as Exhibit C are true and correct copies of all of the resolutions adopted by the Board of Directors, or a properly appointed committee of the Board of Directors of the Company, with respect to the transactions contemplated by the Transaction Documents; the resolutions were duly adopted and constitute all resolutions and actions of the Board of Directors with respect to the transactions described in the Transaction Documents and, except as indicated in such resolutions, such resolutions have not been amended, modified, annulled or revoked, and are in full force and effect on the date of the Opinion Letter.

4.Each person who, as an officer of the Company, signed any of (a) the Transaction Documents, and (b) any other document delivered in connection therewith, including without limitation any stock certificates, was duly elected or appointed, qualified and acting as such officer at the respective times of the signing and delivery thereof and was duly authorized to execute such documents on behalf of the Company, and the signature

of each person appearing below and in such document is such officer’s genuine signature.

Name Office Signature

5.No judicial decree of dissolution has been entered with respect to the Company and the Company has not been voluntarily dissolved, merged or transferred out of existence at any point.

6.The Company has not been organized under the laws of any state other than the State of Maryland.

7.The conduct of the Company’s business is limited to those activities listed in the Company’s Charter and By-Laws.

8.Except as follows, the Company has not issued any shares of Common Stock since March 18, 1994: [Insert description of Pathmark merger and related issuances]

9.The Company does not engage, nor does it propose to engage, in any industry or business or activity, or own any property or asset, that causes or would cause it to be subject to special local, state or federal regulation not applicable to business corporations generally and the Company is not subject to any order, writ, injunction or decree of any court or governmental instrumentality or agency.

10.No shares of preferred stock of the Company other than the shares classified and designated in the Articles Supplementary, have been classified or reclassified, or reserved or authorized for issuance, and other than the Shares issued to the Investors, no shares of preferred stock of the Company are issued and outstanding.

11.To my knowledge, after due inquiry, each of the factual assumptions set forth in the Opinion Letter is true, correct and accurate.

12.All representations and warranties of the Company contained in the Transaction Documents are true and correct as of the date hereof.

13.The Company is not subject to any court orders or judgments, and is not party to any agreements that would prohibit the Company from owning, leasing and operating its properties and assets, and carrying on its business as described in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on May 12, 2009.

14.No person or entity has any pre-emptive or similar rights concerning the securities of the Company other than the Tengelmann Addressee pursuant to that certain Stockholder Agreement dated [         ] by and between the Company and Tengelmann Addressee.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

IN WITNESS WHEREOF, I have hereunto set my hand as of this [  ] day of [  ], 2009.

By:
Name:	Allan Richards
Title:	Senior Vice President, Human Resources, Labor Relations, Legal Services & Secretary

Schedule 1

Wire Information

EX-10.2

Exhibit 10.2

EXECUTION COPY

INVESTMENT AGREEMENT

By and Among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

and

ERIVAN KARL HAUB,

CHRISTIAN WILHELM ERICH HAUB,

KARL-ERIVAN WARDER HAUB,

GEORG RUDOLF OTTO HAUB

and

EMIL CAPITAL PARTNERS, LLC, as Investors’ Representative

and

the other signatories hereto

Dated as of July 23, 2009

TABLE OF CONTENTS

	Page
ARTICLE I
Issuance and Sale of Investor Shares; Closing
SECTION 1.01. Issuance and Sale of the Investor Shares	12
SECTION 1.02. Closing Date	12
SECTION 1.03. Transactions To Be Effected at the Closing	12
ARTICLE II
Representations and Warranties Relating to the Company
SECTION 2.01. Corporate Status	13
SECTION 2.02. Authorization; Noncontravention; No Change of Control	14
SECTION 2.03. Capital Structure	16
SECTION 2.04. Real Property	18
SECTION 2.05. Intellectual Property	19
SECTION 2.06. Environmental Matters	20
SECTION 2.07. Legal Proceedings	21
SECTION 2.08. Taxes	21
SECTION 2.09. Labor	23
SECTION 2.10. Employee Benefit Plans	23
SECTION 2.11. Compliance with Laws	25
SECTION 2.12. SEC Reports and Company Financial Statements	26
SECTION 2.13. Absence of Certain Changes	28
SECTION 2.14. Insurance	30
SECTION 2.15. Private Placement	30
SECTION 2.16. Form S-3 Eligibility	31
SECTION 2.17. Listing and Maintenance Requirements	31
SECTION 2.18. Registration Rights	31
SECTION 2.19. No Restriction on the Ability to Pay Cash Dividends	31
SECTION 2.20. Inventories	31
SECTION 2.21. Contracts	31
ARTICLE III
Representations and Warranties of the Investors
SECTION 3.01. Corporate Status	32
SECTION 3.02. Authorization; Noncontravention	32
SECTION 3.03. Securities Act	33
SECTION 3.04. Available Funds	33
SECTION 3.05. Ownership of Common Stock	33

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ARTICLE IV
Covenants
SECTION 4.01. Reasonable Best Efforts	34
SECTION 4.02. Fees and Expenses	35
SECTION 4.03. NYSE	35
SECTION 4.04. Use of Proceeds	35
SECTION 4.05. Conduct of Business	35
ARTICLE V
Additional Agreements
SECTION 5.01. Publicity	35
SECTION 5.02. Transfer Restrictions	36
SECTION 5.03. Purchase for Investment	36
SECTION 5.04. Legend	36
SECTION 5.05. Investors’ Representative	37
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Each Party’s Obligation	37
SECTION 6.02. Conditions to Obligation of the Investors	38
SECTION 6.03. Conditions to Obligation of the Company	39
SECTION 6.04. Satisfaction of Sections 6.01(d) and 6.01(h)	40
SECTION 6.05. Frustration of Closing Condition	40
ARTICLE VII
Termination
SECTION 7.01. Termination	40
SECTION 7.02. Survival of Representations	41
ARTICLE VIII
General Provisions
SECTION 8.01. Amendments and Waivers	41
SECTION 8.02. Assignment	41
SECTION 8.03. No Third-Party Beneficiaries	42
SECTION 8.04. Notices	42
SECTION 8.05. Interpretation; Exhibits and Schedules; Certain Definitions	43
SECTION 8.06. Counterparts	51
SECTION 8.07. Entire Agreement	51

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SECTION 8.08. Severability	51
SECTION 8.09. Consent to Jurisdiction	51
SECTION 8.10. Governing Law	51
SECTION 8.11. Waiver of Jury Trial	52
SECTION 8.12. No Personal Liability of Partners, Directors, Officers, Owners, Etc.	52
SECTION 8.13. Rights of Holders	52
SECTION 8.14. Adjustment in Share Numbers and Prices	52

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Index of Defined Terms

	Location of
Term	Definition
2011 Notes	2.02(d)
ABL Credit Agreement	8.05
Action	8.05
affiliate	8.05
Agreement	Preamble
Amended and Restated Stockholder Agreement	Recital B
Amended and Restated Yucaipa Stockholder Agreement	Recital E
Ancillary Agreements	2.02(a)
Board of Directors	2.12(e)
By-Laws	8.05
Business Day	8.05
Capital Lease Obligations	8.05
Charter	8.05
ChaseMellon Warrants	8.05
Closing	1.02
Closing Date	1.02
Code	8.05
Collective Bargaining Agreement	8.05
Common Stock	2.02(a)
Company	Preamble
Company Contract	8.05

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Company By-Laws Amendment	8.05
Company Closing Certificate	6.02(c)
Company Disclosure Letter	Article II
Company Leases	2.04(b)
Company Multiemployer Plans	2.10(b)
Company Plans	8.05
Company Tenant Lease	2.04(b)
Company Title IV Plan	2.10(c)
Contract	8.05
Conversion Stockholder Approval	2.02(a)
Convertible Notes	8.05
Convertible Preferred Articles Supplementary	Recital A
Convertible Preferred Stock	Recital A
Copyrights	8.05
Default	8.05
DOJ	8.05
Encumbrance	8.05
Environment	8.05
Environmental Law	8.05

6

	Location of
Term	Definition
ERISA	8.05
ERISA Affiliate	8.05
Exchange Act	8.05
Existing Yucaipa Investors	Recital E
Facilities	8.05
FTC	8.05
GAAP	8.05
Governmental Entity	8.05
Hazardous Materials	8.05
HSR Act	8.05
including	8.05
Indebtedness	8.05
Intellectual Property	8.05
Investors	Preamble
Investors’ Representative	Preamble
Investor Closing Certificates	6.03(c)
Investor Shares	Recital A
IRS	2.10(d)
Judgment	8.05
Labor Laws	8.05
Laws	8.05
Material Adverse Effect	8.05
NYSE	8.05

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	Location of
Term	Definition
Offering	1.01
Patents	8.05
PBGC	2.10(c)
Permits	8.05
Permitted Encumbrances	8.05
person	8.05
Purchase Price	1.01
Purchase Price	8.05
Registered Intellectual Property	8.05
Release	8.05
SEC	8.05
SEC Reports	2.12(a)
Securities Act	8.05
Senior Secured Notes	Recital C
Senior Secured Notes Offering	Recital C
Series B Yucaipa Warrants	8.05
Shares	Recital A
SOX	8.05
Stockholder Agreement	Recital B
subsidiary	8.05
Tax	8.05
Tax Returns	8.05

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	Location of
Term	Definition
Tengelmann	Recital B
Third Party	8.05
Trade Secrets	8.05
Trademarks	8.05
Trading Market	8.05
Underlying Securities	2.03(a)
Voting Debt	8.05
Voting Stock	8.05
Yucaipa Initial Shares	Recital D
Yucaipa Investment Agreement	Recital D
Yucaipa Investors	Recital D
Yucaipa Representative	Recital D

9

List of Exhibits and Schedules

Exhibit A	-	Convertible Preferred Articles Supplementary
Exhibit B	-	Amended and Restated Stockholder Agreement
Exhibit C	-	Opinion of Counsel
Exhibit D	-	Opinion of Maryland Counsel
Schedule 1	-	Wire Information

INVESTMENT AGREEMENT, dated as of July 23, 2009 (this “Agreement”), among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), and ERIVAN KARL HAUB, CHRISTIAN WILHELM ERICH HAUB, KARL-ERIVAN WARDER HAUB and GEORG RUDOLF OTTO HAUB (collectively, the “Investors”) and Emil Capital Partners, LLC (the “Investors” Representative”) (which is a party to this Agreement solely with respect to Section 5.05 hereof).

A.    WHEREAS, the Investors desire to purchase from the Company, and the Company desires to issue and sell to the Investors, pursuant to the terms and conditions set forth in this Agreement, an aggregate of 60,000 shares of the Company’s 8.00% Convertible Preferred Stock due August 1, 2016 (the “Convertible Preferred Stock”), to be issued on the Closing Date (as defined below), each share with an initial liquidation preference of $1,000 (the “Investor Shares”, and, together with any other shares of Convertible Preferred Stock issued pursuant to the Yucaipa Investment Agreement (as defined below) or issued pursuant to Section 4 of the Convertible Preferred Articles Supplementary (as defined below), the “Shares”), having the powers, preferences and rights and the qualifications, limitations and restrictions as spec ified in the Convertible Preferred Articles Supplementary in the form attached hereto as Exhibit A (the “Convertible Preferred Articles Supplementary”) and, immediately following such purchase, the Investors shall contribute the Investor Shares to Tengelmann (as defined below);

B.    WHEREAS, the Company and Tengelmann WarenhandelsGesellschaft KG, a limited partnership organized under the law of Germany (“Tengelmann”), are parties to a stockholder agreement dated as of March 4, 2007 (the “Stockholder Agreement”), and on the Closing Date, the Company and Tengelmann will enter into an amended and restated stockholder agreement in the form attached hereto as Exhibit B (the “Amended and Restated Stockholder Agreement”);

C.    WHEREAS, on the date hereof, the Company will announce and promptly commence a debt offering (the “Senior Secured Notes Offering”) of second-lien senior secured notes (the “Senior Secured Notes”) for an aggregate principal amount of at least $225,000,000;

D.    WHEREAS, simultaneously with the execution of this Agreement, the Company and Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II (the “Yucaipa Investors”) and Yucaipa American Alliance Fund II, LLC (the “Yucaipa Representative”) are entering into an investment agreement, dated as of the date hereof (the “Yucaipa Investment Agreement”) which sets forth the terms and conditions by which the Yucaipa Investors shall purchase 115,000 shares of the Convertible Preferred Stock (the “Yucaipa Initial Shares”), to be issued on the Closing Date for an aggregate cash purchase price of $115,000,000; and

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E. WHEREAS, the Company and Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP (collectively, the “Existing Yucaipa Investors”) are parties to a stockholder agreement dated as of March 4, 2007, and on the Closing Date, the Company, the Existing Investors, the Yucaipa Investors and the Yucaipa Representative will enter into an amended and restated stockholder agreement (the “Amended and Restated Yucaipa Stockholder Agreement”).

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

Issuance and Sale of Investor Shares; Closing

SECTION 1.01. Issuance and Sale of the Investor Shares. On the terms and subject to the conditions set forth in this Agreement, at the Closing the Company shall issue, sell and deliver in certificated form to the Investors, and the Investors shall purchase from the Company, the Investor Shares for an aggregate cash purchase price of $60,000,000 (the “Purchase Price”), payable as set forth below in Section 1.03. The issuance and sale of the Investor Shares is referred to in this Agreement as the “Offering”.

SECTION 1.02. Closing Date. The closing of the Offering (the “Closing”) shall take place at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, at 10:00 a.m. on the date on which the condition set forth in Section 6.0 1(d) has been satisfied (or, to the extent permitted, waived), or, if on such day any condition set forth in Article VI has not been satisfied (or, to the extent permitted, waived by the party entitled to the benefit thereof), as soon as practicable after all the conditions set forth in Article VI have been satisfied (or, to the extent permitted, waived by the parties entitled to the benefits thereof), or at such other place, time and date as shall be agreed between the Company and the Investors. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date”.

SECTION 1.03. Transactions To Be Effected at the Closing. At the Closing, each of the following shall occur substantially simultaneously and be dependent upon each other:

(a) The Company shall file the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland and deliver to the Investors certificates representing the Investor Shares;

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(b)     The Investors shall deliver to the Company payment, by wire transfer to the bank account of the Company specified on Schedule 1, immediately available funds in an amount equal to the Purchase Price;

(c)     The Company and Tengelmann shall each execute the Amended and Restated Stockholder Agreement; and

(d)     The Company shall deliver to the Investors’ Representative payment, by wire transfer to the bank account of the Investors’ Representative specified on Schedule 1, immediately available funds of the amounts owed to Tengelmann or the Investors’ Representative pursuant to Section 4.03.

ARTICLE II

Representations and Warranties
Relating to the Company

Prior to the execution and delivery of this Agreement, the Company has delivered to the Investors a letter, dated as of the date of this Agreement, from the Company to the Investors (the “Company Disclosure Letter”), with numbering corresponding to the sections and subsections of this Article II. Any items disclosed in any provision, section or subsection of the Company Disclosure Letter, with respect to a particular representation or warranty contained in this Article II shall be deemed to be disclosed for purposes of any other representation or warranty contained in this Article II to the extent its relationship thereto is reasonably apparent on its face. Except as set forth in the Company Disclosure Letter and except with respect to Sections 2.01, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.13 (other than the first sentence of Section 2.13) and 2.1 4 only (and not any other sections) as disclosed in the Company’s Annual Report on Form 10-K for the fiscal year ended February 28, 2009 or the Company’s other reports filed with the SEC under Sections 12, 13, 14 or 15(d) of the Exchange Act after February 28, 2009 through and including the date hereof (excluding any forward-looking disclosures contained in such reports under the headings “Risk Factors” or “Cautionary Note” or any similar sections and any other forward looking statement, disclaimer or disclosure that is similarly nonspecific and predictive or forward-looking in nature), the Company represents and warrants to the Investors as follows as of the date of this Agreement (except as of July 20, 2009, as expressly provided in Section 2.03(a)):

SECTION 2.01. Corporate Status. Each of the Company and its material subsidiaries is duly incorporated or otherwise organized, validly existing and in good standing under the Laws of its governing jurisdiction and each (a) has all requisite corporate or other power and authority to carry on its business as it is now being conducted and (b) is duly qualified to do business in each of the jurisdictions in which the ownership, operation or leasing of its assets or the conduct of its business requires it to be so qualified, except where the failure to have such corporate or other power or authority or to be so qualified has not had and would not reasonably be expected to have a Material Adverse Effect.

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SECTION 2.02. Authorization; Noncontravention; No Change of Control.  (a) Authorization. The Company has all necessary corporate power and authority to execute and deliver this Agreement, the Yucaipa Investment Agreement, the Amended and Restated Stockholder Agreement and the Amended and Restated Yucaipa Stockholder Agreement (collectively, the “Ancillary Agreements”), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The Board of Directors has duly adopted resolutions at a meeting duly called and held (i) adopting, authorizing, approving and declaring this Agreement, the Ancillary Agreements, the classification of the Shares as Convertible Preferred Stock, the issuance of the Investor Shares at Closing, the reservation for issuance of the shares of Convertible Preferred Sto ck issued pursuant to Section 4 of the Convertible Preferred Articles Supplementary and the Underlying Securities and the other transactions contemplated hereby and by the Ancillary Agreements on the terms and subject to the conditions set forth herein and therein advisable, fair to and in the best interest of the Company, (ii) adopting the Company By-Laws Amendment and the Convertible Preferred Articles Supplementary, (iii) directing that the proposal for the Conversion Stockholder Approval be submitted to a vote at a meeting of the stockholders of the Company and (iv) recommending that the stockholders of the Company adopt the proposal for the Conversion Stockholder Approval. No “fair price,” “moratorium,” “control share acquisition,” “business combination,” or other similar anti-takeover provision under Maryland or Federal Laws, including Section 3-702 of the Maryland General Corporation Law, apply to this Agreement, the Offering and the oth er transactions contemplated hereby, and pursuant to the Company By-Laws Amendment, the Company will be exempt from the application of the Maryland Control Share Acquisition Act (Section 3-701, et seq. of the Maryland General Corporation Law) following the date thereof. The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation by the Company of the transactions contemplated hereby and thereby, including the issuance (or reservation for issuance), sale and delivery of the Shares and the Underlying Securities, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company or its material subsidiaries or vote of holders of any class or series of capital stock of the Company or its material subsidiaries is necessary to authorize this Agreement or the Ancillary Agreements or to consummate the transactions contemplated hereby and thereby, including the issuance (or reservation for issuance ), sale and delivery of the Shares and the Underlying Securities, other than the approval, to the extent and as required under the rules and regulations of the NYSE, of (1) the Shares, when voting together with common stock, par value $1.00 per share, of the Company (“Common Stock”), becoming entitled to cast the full number of votes on an as-converted basis and (2) the issuance of the full amount Common Stock upon the exercise of conversion rights of the Shares, 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 in accordance with the NYSE rules for stockholder approval (the “Conversion Stockholder Approval”). This Agreement has been duly executed and delivered by the Company and (assuming due authorization, execution and delivery by each Investor and the Investors’ Representative) constitutes, and each Ancillary

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Agreement, when executed and delivered by the Company (assuming due authorization, execution and delivery by the other parties thereto), will constitute, a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law). The sale and issuance of the Shares at Closing are not, and the issuance of shares of Convertible Preferred Stock pursuant to Section 4 of the Convertible Preferred Articles Supplementary and the issuance of the Underlying Securities will not be, subject to any preemptive rights or rights of first offer.

(b)     No Conflict. The Company is not in violation or Default of any provision of its Charter or By-Laws. None of the Company or its material subsidiaries is in breach or Default under any material Collective Bargaining Agreement. The execution, delivery and performance by the Company of this Agreement and the Ancillary Agreements do not, and the consummation of the Offering, the Senior Secured Notes Offering (assuming satisfaction of Sections 6.01(d) and 6.02(h)) and the other transactions contemplated hereby and thereby and compliance with the provisions of this Agreement and the Ancillary Agreements will not, result in a change of control under, or conflict with, or result in any Default under, or give rise to an increase in, or right of termination, cancellation or acceleration of, any obligation or to the loss of a benefit under, or result in the suspensi on, revocation, impairment, forfeiture or amendment of any term or provision of or the creation of any Encumbrance upon any of the properties or assets of the Company or any of its material subsidiaries under, or require any consent or waiver under, any provision of (i) the Charter of the Company, the By-Laws of the Company upon effectiveness of the Company By-Laws Amendment or the comparable organizational documents of any of the Company’s subsidiaries, (ii) any material Contract to which the Company or any of its material subsidiaries is a party or by which any of its assets are bound, (iii) any Law, material Judgment or material Permit, in each case applicable to the Company and its material subsidiaries or its assets or (iv) any Collective Bargaining Agreement, Company Multiemployer Plans or Company Plans. No Permit, order or authorization of, or registration, qualification, declaration or filing with, or notice to, any Governmental Entity is required to be obtained or made by or with respect to the Company or any of its material subsidiaries in connection with the execution, delivery and performance of this Agreement or any of the Ancillary Agreements by the Company or the consummation by the Company of the Offering, the Senior Secured Notes Offering or the other transactions contemplated by this Agreement or the Ancillary Agreements, including the issuance of the Shares, the Underlying Securities and the Senior Secured Notes, except for (A) the filing of the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland, (B) the filing with the FTC and the DOJ of the notification and report form and other information and documents required to be filed pursuant to the HSR Act, which have been completed, (C) the filing with the SEC of such reports, forms, schedules, statements and other documents (including all exhibits) required to be filed by it under the Exchange Act, the Securities Act, state securities Laws or “blue-sky” laws as may be required in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, (D) any filings

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required under the rules and regulations of the NYSE and (E) such Permits, orders, authorizations, registrations, declarations, filings and notices, the failure of which to be obtained or made would not materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or consummate the transactions contemplated hereby or thereby. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event (whether contingent or otherwise) will (1) result in the payment of any “excess parachute payment” under Section 280G of the Code, (2) entitle any current or former employee, consultant or director of the Company or any of its subsidiaries to any payment, (3) increase the amount of compensation or benefits due to any such employe e, consultant or director or (4) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit.

(c)     No “Change of Control” (within the meaning of the Company’s 2008 Long Term Incentive and Share Award Plan or the Company’s 1998 Long Term Incentive and Share Award Plan, each as amended from time to time) has at any time occurred or been deemed to have occurred for purposes of such plans or any award granted under such plans, and no award granted under either such plan has become exercisable or vested on an accelerated basis on account of a Change of Control.

(d)     Notwithstanding any terms and obligations included on the face or back or otherwise included on any of the notes representing the Company’s outstanding 9 1/8% Senior Notes due 2011 (the “2011 Notes”), the terms and obligations of any such 2011 Notes include only those terms and obligations included in the 1991 Indenture, as supplemented by the Second Supplemental Indenture, dated as of December 20, 2011, and the Fourth Supplemental Indenture, dated as of August 23, 2005, and do not include any additional terms or obligations that may be included on the face or back or otherwise included on any of the 2011 Notes.

SECTION 2.03. Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of 160,000,000 shares of Common Stock, of which 57,899,318 shares are issued and outstanding as of July 20, 2009, and 3,000,000 shares of preferred stock, no par value per share, of which no shares are issued and outstanding as of July 20, 2009. As of July 20, 2009, there are 2,564,396 shares of Common Stock subject to outstanding options to acquire Common Stock, 4,456,987 shares of Common Stock deliverable pursuant to outstanding restricted stock units, 6,965,858 shares of Common Stock issuable upon the exercise of the Series B Yucaipa Warrants, 6,965,858 shares of Common Stock reserved for issuance upon the exercise of the Series B Yucaipa Warrants, 686,277 shares of Common Stock issuable upon the exercise of the ChaseMellon War rants, 686,277 shares of Common Stock reserved for issuance upon the exercise of the ChaseMellon Warrants, 11,278,999 shares of Common Stock issuable upon the conversion of the Convertible Notes, 11,278,999 shares of Common Stock reserved for issuance upon the conversion of the Convertible Notes and no stock equivalent units linked to Common Stock. Each share of Common Stock is duly authorized, validly issued, fully paid and nonassessable. The Shares, and the Common Stock issuable upon conversion of the Investor Shares (the “Underlying Securities”), have been duly authorized and reserved, and the Shares will, and upon conversion of the

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Shares in accordance with the Convertible Preferred Articles Supplementary, the Underlying Securities, will (i) be validly issued, fully paid and nonassessable, (ii) not have been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Maryland General Corporation Law, the Charter or By-Laws of the Company or any Contract to which the Company or any of its material subsidiaries is a party or by which any of its or their respective assets are bound and (iii) be free and clear of all Encumbrances. Other than the Convertible Notes, the Company has no Voting Debt. Except as set forth above, in Section 2.03(a) of the Company Disclosure Letter or as expressly contemplated by this Agreement there are no (A) outstanding obligations, options, warrants, convertible securities, exchan geable securities, securities or rights that are linked to the value of the Common Stock or other rights, agreements or commitments relating to the capital stock of the Company or obligating the Company to issue or sell or otherwise transfer shares of capital stock of the Company or any securities convertible into or exchangeable for any shares of capital stock of the Company or any Voting Debt of the Company, (B) outstanding obligations of the Company to repurchase, redeem or otherwise acquire shares of capital stock of the Company, (C) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the Company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party) or (D) rights of first refusal, preemptive rights, subscription rights or any similar rights under any provision of the Maryland General Corporation Law, the Charter or By-L aws or any Contract to which the Company is a party or by which any of its assets are bound. No provision of the Charter or the By-Laws would, directly or indirectly, restrict or impair the ability of the Investors or Tengelmann to vote, or otherwise exercise the rights of a stockholder with respect to, the Shares (or any Underlying Securities) or any other shares of Common Stock of the Company that may be acquired or controlled by the Investors or Tengelmann, except as expressly set forth in the Convertible Preferred Articles Supplementary. The Company does not have an outstanding “poison pill” or any similar arrangement in effect giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events.

(b)     Section 2.03(b) of the Company Disclosure Letter sets forth as of the date hereof a list of all material subsidiaries of the Company, including each such subsidiary’s name, its jurisdiction of incorporation or organization and the percentage of its outstanding capital stock or equity interests owned by the Company or a subsidiary of the Company (as applicable). The shares of outstanding capital stock or equity interests of the subsidiaries of the Company are duly authorized, validly issued, fully paid and nonassessable, and are held of record and beneficially owned by the Company or a subsidiary of the Company (as applicable), free and clear of any Encumbrances other than Permitted Encumbrances. There is no Voting Debt of any subsidiary of the Company. There are no (i) outstanding obligations, options, warrants, convertible securities, exchangeab le securities, securities or rights that are linked to the value of the Common Stock or other rights, agreements or commitments, in each case, relating to the capital stock of the subsidiaries of the Company or obligating the Company or its subsidiaries to issue or sell or otherwise transfer shares of the capital stock of the subsidiaries of the Company or any securities convertible into or exchangeable for any

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shares of capital stock of the subsidiaries of the Company or any Voting Debt of any subsidiary of the Company, (ii) outstanding obligations of the subsidiaries of the Company to repurchase, redeem or otherwise acquire shares of their respective capital stock, (iii) voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock of the subsidiaries of the Company (but only to the Company’s knowledge with respect to any such agreements to which the Company is not a party) or (iv) rights of first refusal, preemptive rights, subscription rights or any similar rights under any provision of the Maryland General Corporation Law, the governing documents of any material subsidiary of the Company or any Contract to which any material subsidiary of the Company is a party or by which any of their respective assets are bound.

(c)     Other than the subsidiaries of the Company, there are no persons in which any of the Company or its subsidiaries owns any equity, membership, partnership, joint venture or other similar interest.

(d)     The Company or one of its subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable Law) to receive dividends and other distributions on, all capital securities of its subsidiaries as owned by the Company or such subsidiary.

SECTION 2.04. Real Property. (a) The Company or one of its subsidiaries has good and marketable title in fee simple, free and clear of material Encumbrances (other than Permitted Encumbrances), to the real property owned by the Company. Neither the Company nor any of its subsidiaries has received written notice of any pending condemnation proceedings.

(b)     Each (x) lease or sublease pursuant to which the Company or any of its subsidiaries holds a leasehold or subleasehold estate or other right to use or occupy any interest in real property (the “Company Leases”) and (y) existing leases, subleases, licenses or other occupancy agreements to which the Company or any of its subsidiaries is a party as landlord or lessor thereunder or by which the Company or any of its subsidiaries is bound as landlord or lessor thereunder, and all amendments, modifications, extensions and supplements thereto (each, a “Company Tenant Lease”) (i) constitutes a valid and binding obligation of the Company or the subsidiary of the Company party thereto; (ii) assuming such lease is a legal, valid and binding obligation of, and enforceable against, the other parties thereto, is enforceable aga inst the Company or the subsidiary of the Company party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity); and (iii) to the Company’s knowledge is a valid and binding obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity), except, with respect to clauses (i) through (iii) above, as has not had or would not reasonably be expected to have a Material Adverse Effect.

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Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) none of the Company or its subsidiaries is in breach or default under any Company Lease and (ii) to the Company’s knowledge, none of the landlords or sublandlords under any Company Lease is in material breach or default of its obligations under such Company Lease. Except as has not had a Material Adverse Effect, the Company and its subsidiaries enjoy peaceful and undisturbed possession under each Company Lease.

(c)     The Real Property and the buildings and other improvements, fixtures, equipment and other property attached, situation or appurtenant thereto, are in good operating condition and repair, subject to normal wear and tear and normal industry practice with respect to maintenance, except as has not or would not reasonably be expected to have a Material Adverse Effect. Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) the present use of the Real Property does not violate any restrictive covenant, municipal by-law or other Law or agreement that in any way restricts, prevents or interferes in any material respect with the continued use of the Real Property for which it is used in the business of the Company and its subsidiaries, other than Permitted Encumbrances, (ii) no condemnation, eminent domain or similar procee ding exists or is pending or, to the Company’s knowledge, is threatened with respect to or that could affect any Real Property and (iii) all Real Property is supplied with utilities and other services necessary for the operation thereof generally consistent with past practices and consistent with the contemplated operation thereof.

(d)     All material fixtures, plants, vehicles, equipment, machinery and other material items of personal property owned by the Company and its material subsidiaries, used in the operation of the Company’s and its material subsidiaries’ business or located on any Real Property or attached thereto, are in good condition and working order, ordinary wear and tear excepted, and are reasonably suitable for the uses for which intended, free from any defects known to the Company, except for such defects or lack of good condition or working order which have not had and would not reasonably be expected to have a Material Adverse Effect.

SECTION 2.05. Intellectual Property. (a) The Company and its subsidiaries own, or are validly licensed or otherwise have the right to use, all Intellectual Property that is necessary for the conduct of the business of the Company and its subsidiaries taken as a whole, except as has not had or would not reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have not entered into any license agreement with any Third Party with respect to the Company’s Registered Intellectual Property.

(b)     The business of the Company and its subsidiaries as currently conducted (including the use of the Intellectual Property) does not infringe, misappropriate, conflict with or otherwise violate any person’s Intellectual Property and there is no such claim pending or, to the Company’s knowledge, threatened against any of the Company or its subsidiaries, except where such infringement, misappropriation,

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conflict, violation or claim has not had and would not reasonably be expected to have a Material Adverse Effect.

(c)     To the Company’s knowledge, and except as has not had or would not reasonably be expected to have a Material Adverse Effect, no person is infringing, misappropriating, conflicting with or otherwise violating any material Intellectual Property owned by any of the Company or its subsidiaries, and no such claims are pending or threatened against any person by any of the Company or its subsidiaries.

(d)     All Intellectual Property owned by the Company or its subsidiaries is owned free and clear of all Encumbrances (other than licenses to persons entered into in the ordinary course of business generally consistent with past practice of the Company and its subsidiaries), except for Permitted Encumbrances or where such Encumbrances have not had and would not reasonably be expected to have a Material Adverse Effect.

SECTION 2.06. Environmental Matters. (a) The Company and its subsidiaries have obtained all Permits that are required under any Environmental Law for the operation of the business of the Company and its subsidiaries as currently being conducted and their current use and operation of the Real Property, and all such Permits are in full force and effect, other than any failure to obtain or maintain such Permits in full force and effect which has had and would not reasonably be expected to have a Material Adverse Effect.

(b)     The Company and its subsidiaries have operated and are operating the business of the Company and its subsidiaries, and the Real Property and other assets of the Company and its subsidiaries are in compliance with Environmental Laws, other than any non-compliance which in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect.

(c)     Except as has not had and would not reasonably be expected to have a Material Adverse Effect, (i) there has been no Release of any Hazardous Materials by the Company or any of its subsidiaries at, on, under or from the Real Property or any other location, (ii) Real Property has not been used for the deposit of Hazardous Materials and (iii) neither the Company nor any of its subsidiaries has disposed of, arranged for treatment or disposal of, or arranged for the transportation for treatment or disposal of, any Hazardous Materials at any Third Party location.

(d)     (i) None of the Company or its subsidiaries has received any written notice, demand letter, claim or order alleging a violation of, or liability under, any Environmental Law and (ii) none of the Company or its subsidiaries is party to any pending Action, decree or injunction alleging liability under or violation of any Environmental Law, except in each case of (i) or (ii) of this Section 2.06(d), if adversely determined against the Company, would not have or would not reasonably be expected to have a Material Adverse Effect.

(e)     Except as has not had and would not reasonably be expected to have a Material Adverse Effect, there are no storage tanks, sumps or other similar vessels,

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asbestos-containing materials or polychlorinated biphenyls located on, at or under any Real Property or at, on or in any structures, Facilities or equipment at the Real Property.

SECTION 2.07. Legal Proceedings. There are no Actions pending or, to the Company’s knowledge, threatened in writing (and, in either case, not withdrawn), against the Company or any of its subsidiaries, which, if adversely determined, would have or would reasonably be expected to have a Material Adverse Effect. There are no Actions pending or, to the Company’s knowledge, threatened in writing (and, in either case, not withdrawn) against the Company or any of its subsidiaries which, if adversely determined, would materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or challenge the validity or enforceability of this Agreement or any Ancillary Agreement or seek to enjoin or prohibit the consummation of the transactions contemplated hereby or thereby. None of the Company or any of its subsidiaries is in defau lt with respect to any material Judgment or subject to any Judgment of over $1,000,000, which has had or would reasonably be expected to have a Material Adverse Effect or would materially impair the Company’s ability to perform its obligations under this Agreement or the Ancillary Agreements or consummate the transactions contemplated hereby or thereby.

SECTION 2.08. Taxes. (a) Except as has not had and would not reasonably be expected to have a Material Adverse Effect: (i) the Company and each of its subsidiaries have timely filed with the appropriate taxing authority all material Tax Returns required to be filed, taking into account valid extensions; (ii) all such Tax Returns are complete and accurate in all material respects; (iii) all Taxes due and owing by the Company and each of its subsidiaries (whether or not shown on any Tax Return) have been paid; and (iv) neither the Company nor any of its subsidiaries has been informed in writing by a Governmental Entity in a jurisdiction where the Company or any of its subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

(b)   The unpaid Taxes of the Company and its subsidiaries did not, as of the dates of the financial statements contained in the most recent SEC Report filed with the SEC prior to the date of this Agreement, exceed by a material amount the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) included in the balance sheets contained in such financial statements. Since the date of the financial statements contained in the most recent SEC Report filed with the SEC prior to the date of this Agreement, neither the Company nor any of its subsidiaries has incurred any material liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and past practice of the Company and its subsidiaries in filing their Tax Returns.

(c)   As of the date hereof, no deficiencies for Taxes against the Company or any of its subsidiaries in excess of $100,000 individually or $1,000,000 in the aggregate have been claimed or assessed in writing by a Governmental Entity that have not been settled or resolved. There are no currently ongoing, pending or, to the Company’s knowledge, threatened audits, assessments or other Actions for or relating to any liability in respect of Taxes of the Company or any of its subsidiaries. The Company

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has made available to the Investors or representatives of the Investors complete and accurate copies of all Federal income and material state, local and foreign income, franchise and sales and use Tax Returns of each of the Company and its subsidiaries and their predecessors for the years ended on or after February 23, 2008 and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by the Company or any of its subsidiaries or any predecessors since February 23, 2008 with respect to any material Tax. Other than any waivers or extensions granted in the ordinary course of business after the date of this Agreement and prior to the Closing Date, neither the Company, its subsidiaries nor any of their respective predecessors has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessmen t or deficiency (other than as a result of a valid extension of time to file a Tax Return).

(d)   There are no material Encumbrances for Taxes on any assets of the Company or any of its subsidiaries, other than Encumbrances in respect of property taxes not yet due and payable.

(e)   Other than customary gross-up, tax escalation or similar provisions in financing and commercial Contracts entered into in the ordinary course of business, there are no Tax sharing agreements or similar arrangements (including indemnity arrangements) with respect to or involving the Company or any of its subsidiaries other than agreements solely between the Company or its subsidiaries, and, after the Closing Date, neither the Company nor any of its subsidiaries shall be bound by any such Tax sharing agreements or similar arrangements or have any liability thereunder.

(f)    Neither the Company nor any of its subsidiaries has been a member of any affiliated group filing a consolidated Federal income Tax Return other than a group the common parent of which is the Company. Except pursuant to customary gross-up, tax escalation or similar provisions in financing and commercial Contracts entered into in the ordinary course of business, neither the Company nor any of its subsidiaries has any actual or potential liability for the Taxes of any person (other than Taxes of the Company and its subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state or local Law), as a transferee or successor, by Contract, or otherwise.

(g)   The Company and each of its subsidiaries have timely withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

(h)   Neither the Company nor any of its subsidiaries has entered into any transaction identified as a “listed transaction” for purposes of Treasury Regulations Section 1.601 1-4(b)(2).

(i)    Neither the Company nor any of its subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period or portion thereof ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period beginning on or

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prior to the Closing Date under Section 48 1(c) of the Code (or any similar provision of state, local or foreign Law) or (ii) agreement with a taxing authority relating to Taxes.

(j)    None of the assets of the Company (a) is “tax-exempt use property” (as defined in Section 168(h)(1) of the Code), (b) may be treated as owned by any other person pursuant to Section 1 68(f)(8) of the Internal Revenue Code of 1954 (as in effect immediately prior to the enactment of the Tax Reform Act of 1986), (c) is property used predominantly outside the United States within the meaning of proposed Treasury Regulations Section 1.1 68-2(g)(5) or (d) is “tax exempt” and financed property within the meaning of Section 168(g)(5) of the Code.

(k)   Neither the Company nor any of its subsidiaries has distributed the stock of any corporation in a transaction satisfying the requirements of Section 355 of the Code since December 31, 2006, and neither the stock of the Company nor the stock of any of its subsidiaries has been distributed in a transaction satisfying the requirements of Section 355 of the Code since December 31, 2006.

SECTION 2.09. Labor. No Collective Bargaining Agreement currently is being negotiated. None of the Company or its subsidiaries has any obligation to inform or consult with any employees or their representatives in respect of the transactions contemplated hereby under the terms of any Collective Bargaining Agreement. Since February 28, 2008, there has not been any material work stoppage, slowdown, lockout, employee strike or, to the Company’s knowledge, labor union organizing activity involving any of the Company or its subsidiaries and, to the Company’s knowledge, none of the foregoing or any labor dispute or Action that has had or would reasonably be expected to have a Material Adverse Effect has been threatened. The Company and its subsidiaries are operating the business of the Company and its subsidiaries in compliance with all Labor Laws other than non-compliance which has not had and would not reasonably be expected to have a Material Adverse Effect. As of the date hereof, to the Company’s knowledge, there are no ongoing union certification drives or pending proceedings for certifying a union with respect to employees of any of the Company or its subsidiaries.

SECTION 2.10. Employee Benefit Plans. (a) Each Company Plan and, to the Company’s knowledge, each Company Multiemployer Plan has been operated and administered in all material respects in accordance with its terms and the terms of all Collective Bargaining Agreements and any other labor-related agreements with any labor union or labor organization applicable to employees of the Company or any of its subsidiaries and the requirements of all applicable Laws, including ERISA and the Code. As of the date of this Agreement, no Action is pending or, to the Company’s knowledge, threatened with respect to any Company Plan (other than claims for benefits in the ordinary course) that would result in any material liability to the Company, its subsidiaries or any Company Plan fiduciary and, to the Company’s knowledge, no fact or event exists that would give rise to any such Action. As of the date of this Agreement, to the Company’s knowledge, (i) no Action is pending or threatened with respect to any Company Multiemployer Plan (other than claims for benefits in the ordinary course) that

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would result in any material liability to the Company and (ii) no fact or event exists that would give rise to any such Action.

(b)   No withdrawal liability has been incurred under Title IV of ERISA by the Company or any of its ERISA Affiliates with respect to any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) which is or has been contributed to by the Company or any of its ERISA Affiliates at any time during the six-year period ending on the date of this Agreement or as to which the Company or any of its ERISA Affiliates has any liability (the “Company Multiemployer Plans”), and no such liability would be incurred if the Company or any of its ERISA Affiliates were to withdraw from any Company Multiemployer Plan in a complete or partial withdrawal. The Company has not agreed with any person to be responsible for any liability under Title IV of ERISA with respect to any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3)&nbs p;of ERISA.

(c)   With respect to any Company Plan which is subject to Part 3 of Subtitle B of Title I or to Title IV of ERISA (a “Company Title IV Plan”): (i) there is no lien under Section 412(n) of the Code; (ii) no liability (other than liability for premiums) to the Pension Benefit Guaranty Corporation, (the “PBGC”) has been incurred and all premiums required to be paid to the PBGC have been paid by or on behalf of such Company Title IV Plan; (iii) the assets of each Company Title IV Plan equal or exceed the benefit liabilities of such Company Title IV Plan determined on a termination basis; and (iv) as of the date hereof, the Company has received no actual notice from the PBGC that an event or condition exists which (A) would constitute grounds for termination of such Company Title IV Plan by the PBGC or (B) has caused a partial or complete termination of such Company Title IV Plan.

(d)   All contributions to Company Plans and, to the Company’s knowledge, the Company Multiemployer Plans required to be made by applicable Law or the terms of the applicable Company Plan or Company Multiemployer Plan have been timely made. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination letter from the United States Internal Revenue Service (“IRS”) which has not been revoked (or, in either case, the Company has timely applied for same or will do so) and each trust established in connection with any Company Plan which is intended to be exempt from Federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS which has not been revoked that it is so exempt, and, to the Company’s knowledge, no fact or event has occurred si nce the date of such determination letter or letters from the IRS that would reasonably be expected to materially adversely affect the qualified status of any such Company Plan or the exempt status of any such trust. To the Company’s knowledge, each Company Multiemployer Plan intended to be qualified under Section 401(a) of the Code is so qualified.

(e)   Except as would not reasonably be expected to result in material liability, neither the Company nor any of its ERISA Affiliates, and to the Company’s knowledge no other person, has engaged in any transaction or acted or failed to act in any

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manner that would subject the Company or any of its ERISA Affiliates to any liability for breach of fiduciary duty under ERISA.

(f)    Except as would not reasonably be expected to result in material liability, neither the Company nor any of its ERISA Affiliates and, to the Company’s knowledge, no other person has engaged in any transaction in violation of Section 406(a) or (b) of ERISA or Section 4975 of the Code for which no exemption exists under Section 408 of ERISA or Section 4975(c) or (d) of the Code.

(g)   As of the date hereof, (i) all of the stock options issued by the Company that vest on or after January 1, 2005 were issued with an exercise price no less than the fair market value of the underlying stock at the actual date of grant or the Business Day immediately preceding the actual date of grant, (ii) no shares of restricted Common Stock provide for a deferral opportunity beyond vesting, and (iii) no restricted share units or other compensatory equity awards issued by the Company constitute “nonqualified deferred compensation” within the meaning of Section 409A(d)(1) of the Code.

(h)   Except as would not reasonably be expected to result in material liability, the Company and its subsidiaries have no obligations, whether under Company Plans, Company Multiemployer Plans or otherwise, to provide medical, health or life insurance or any other welfare-type benefits for current or future retired or terminated employees of the Company or its subsidiaries or their spouses or dependents (other than in accordance with Part 6 of Title I of ERISA or Code Section 4980B).

(i)    Each Company Plan that provides for “nonqualified deferred compensation” within the meaning of Section 409A(d)(1) of the Code, and any award thereunder, in each case that is subject to Section 409A of the Code, (i) has been operated in compliance in all material respects with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of Section 409A of the Code and the Treasury Regulations and other official guidance issued thereunder, and (ii) has been maintained in compliance with Section 409A of the Code and the final Treasury Regulations and all subsequent official guidance issued thereunder.

SECTION 2.11. Compliance with Laws. Each of the Company and its subsidiaries is operating its business in compliance with all applicable Laws (including any zoning or building ordinance, code or approval), except to the extent any noncompliance with such Laws has not had and would not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, neither the Company nor any of its subsidiaries is being investigated with respect to, or is subject to a pending threat to be charged with or given notice of any material violation of, any applicable Law. All Permits required to conduct the business of the Company and its subsidiaries as currently conducted have been obtained by one or more of the Company or its subsidiaries and all such Permits are in full force and effect and the business of the Company and its subsidiaries is being operated in compliance the rewith, except for such Permits the failure of which to possess or be in full force and effect or to be complied with has not had and

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would not reasonably be expected to have a Material Adverse Effect (except that this sentence shall not apply to any Permits which are covered by Section 2.06).

SECTION 2.12. SEC Reports and Company Financial Statements.  (a) The Company has timely filed all forms, reports, schedules, statements and other documents (including all exhibits) required to be filed by it with the SEC since February 23, 2008 (the “SEC Reports”). The SEC Reports (i) were prepared in all material respects in accordance with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, and (ii) did not at the time they were filed (or, in the case of a registration statement, as of its most recent effective date) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misle ading. No subsidiary of the Company is a registrant with the SEC.

(b)   Each of the consolidated financial statements (including, in each case, any notes thereto) included or incorporated by reference in the SEC Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated subsidiaries as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein.

(c)   Except as set forth on or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of February 28, 2009 included in the “Fiscal 2008 Annual Report to Stockholders” attached as an exhibit to the Company’s Form 10-K for the year ended February 28, 2009 including the notes thereto, none of the Company or any of its consolidated subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except for liabilities or obligations (i) incurred since February 28, 2009 in the ordinary course of business and consistent with past practice, or (ii) that are less than $5,000,000 in the aggregate.

(d)   Neither the Company nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract relating to any transaction or relationship between or among the Company and any of its subsidiaries, on the one hand, and any unconsolidated affiliate of the Company or any of its subsidiaries, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its subsidiaries in the Company’s or such subsidiary’s audited financial statemen ts or other SEC Reports.

(e)   The audit committee of the Board of Directors of the Company (the

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“Board of Directors”) has established “whistleblower” procedures that meet the requirements of Exchange Act Rule 1 0A-3. Neither the Company nor any subsidiary has received any “complaints” (within the meaning of Exchange Act Rule 10A-3) in respect of any accounting, internal accounting controls or auditing matters. To the Company’s knowledge, no complaint seeking relief under Section 806 of SOX has been filed with the United States Secretary of Labor and no employee has threatened to file any such complaint.

(f)    The Company has made all certifications and statements required by Sections 302 and 906 of SOX and the related rules and regulations promulgated thereunder with respect to the SEC Reports. The Company and its subsidiaries maintain a system of “disclosure controls and procedures” (as defined in Rule 1 3a- 15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is, in all material respects, recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. Since February 23 , 2008, the Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

(g)   The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply in all material respects with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as would not have a Material Adverse Effect, the Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions a re recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Board of Directors (A) any significant deficiencies and material weaknesses in the design or operation of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involv es management or other employees who have a significant role in the Company’s internal controls over financial reporting.

(h)   The Company is in material compliance in all material respects with applicable requirements of SOX and applicable rules and regulations promulgated by the

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SEC thereunder. To the Company’s knowledge, there is no reason that its outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of SOX, without qualification, when next due.

(i)    Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009, none of the officers, directors, employees or related persons (as defined in Regulation S-K Item 404) of the Company is presently a party to any transaction with the Company or any of its subsidiaries that would be required to be reported on Form 10-K by Item 13 thereof pursuant to Regulation S-K Item 404 (other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director, employee or related person or, to the Company’s knowledge, any corporation, partnership, trust or other entity in which any such officer, director, e mployee or related person has a substantial interest or is an officer, director, trustee or partner.

(j)    Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009 and pursuant to the Ancillary Agreements, neither Tengelmann nor any of its officers, directors, employees or affiliates is presently a party to any transaction with the Company or any of its material subsidiaries, including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from Tengelmann or any of its officers, directors, employees or affiliates or, to the Company’s knowledge, any corporation, partnership, trust or other entity in which Tengelmann or any of its officers, directors, employees or affiliates has a substantial interest or is an officer, director, trustee or partner.

(k)   Except as disclosed in the Company’s Form 10-K for the year ended February 28, 2009, neither the Company nor any of its subsidiaries has any outstanding Indebtedness, other than intercompany loans (among wholly owned subsidiaries) and other than Indebtedness incurred in the ordinary course of business and consistent with past practice since February 28, 2009 in an aggregate principal amount which does not exceed $5,000,000. Neither the Company nor any of its material subsidiaries is, immediately prior to this Agreement, or will be, at the time of the Closing after giving effect thereto, in Default in the payment of any Indebtedness or in breach or Default under any Contract evidencing or relating to its material Indebtedness, including the resolutions adopted by the Pricing Committee of the Board of Directors on August 4, 1999, relating to the Company&# 146;s 9 3/8% Senior Quarterly Interest Bonds due 2039, and the exhibits thereto, or under any mortgage, deed of trust, security agreement or lease to which it is a party.

SECTION 2.13. Absence of Certain Changes. Since February 28, 2009 through the date hereof, there has not occurred any change, event or circumstance that has had or would be reasonably expected to have a Material Adverse Effect. Except as expressly contemplated by this Agreement or the Ancillary Agreements, since February 28, 2009 through the date hereof, the Company and its subsidiaries have conducted their business in the ordinary course generally consistent with past practice in all material

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respects, and none of the Company or its subsidiaries has:

(a)   amended its Charter, By-Laws or other organizational documents;

(b)   adopted a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization;

(c)   (i) issued, sold, transferred or otherwise disposed of any shares of its capital stock, Voting Debt of the Company or other voting securities or any securities convertible into or exchangeable for any of the foregoing, (ii) granted or issued any options, warrants, securities or rights that are linked to the value of the Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, (iii) split, combined, subdivided or reclassified any shares of its capital stock, (iv) declared, set aside or paid any dividend or other distribution with respect to any shares of its capital stock or (v) redeemed, purchased or otherwise acquired any shares of its capital stock or any rights, warrants or options to acquire any such shares or effected any reduction in capital, except (with respect to clauses (i) through (v) above) for: (A) issuances of capital stock of the Company’s subsidiaries to the Company or a wholly owned subsidiary of the Company, (B) issuances of shares of Common Stock upon exercise of employee stock options or upon vesting of restricted stock units or restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing, (C) grants made pursuant to Company Plans, (D) dividends or other distributions by any subsidiary of the Company to the Company or a wholly owned subsidiary of the Company and (E) issuances pursuant to any share lending agreement, hedging agreement, and any other documents related thereto;

(d)   issued any note, bond or other debt security or right to acquire any debt security, incurred or guaranteed any Indebtedness or entered into any “keep well” or other agreement to maintain the financial condition of another person or other arrangement having the economic effect of any of the foregoing, other than (i) trade or standby letters of credit in the ordinary course of business; (ii) in connection with new store openings or other actions in the ordinary course of business; (iii) pursuant to any existing credit agreement and other existing Contracts regarding other Indebtedness; (iv) issuances, incurrences or guarantees by the Company to any wholly owned subsidiary of the Company or by a subsidiary to the Company or any other wholly owned subsidiary of the Company; (v) incurrences or guarantees of store leases; (vi) other guarantees required under any agreements or commitments existing as of the date of this Agreement; (vii) in connection with any equipment leases and capital leases; (viii) in connection with any insurance premium financing in the ordinary course of business generally consistent with past practice; or (ix) guarantees of any Indebtedness permitted by the foregoing clauses (i) through (viii);

(e)   except as required under a Company Plan or Collective Bargaining Agreement or in the ordinary course of business generally consistent with past practice, (i) increased or accelerated the benefits under any Company Plan or Collective Bargaining Agreement, (ii) increased the compensation or benefits payable to any current or former director, officer, employee or consultant of the Company or its subsidiaries,

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(iii) granted any rights to severance, change in control or termination pay to, or entered into any employment, severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its subsidiaries, or (iv) taken any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan;

(f)    entered into or consummated any transaction involving the acquisition (including, by merger, consolidation or acquisition of the business, stock or all or substantially all of the assets or other business combination) of any other person for consideration to such person in excess of $20,000,000 in the aggregate (other than purchases of inventory or acquisitions of real property, fixtures and equipment for the opening of any Facility in the ordinary course of business generally consistent with past practice);

(g)   settled any Action or threatened any Action involving a payment by the Company or any of its subsidiaries in excess of $1,000,000;

(h)   changed any of its material accounting policies or practices, except as required as a result of a change in GAAP or the rules and regulations of the SEC;

(i) (i) made, changed or revoked any material election in respect of Taxes, (ii) adopted or changed any material accounting method in respect of Taxes, (iii) entered into any Tax allocation agreement, Tax-sharing agreement, Tax indemnity agreement or closing agreement, (iv) settled or compromised any material claim, notice, audit report or assessment in respect of Taxes or (v) surrendered any right to claim a material refund of Taxes; or

(j)    agreed or committed by Contract or otherwise to do any of the foregoing.

SECTION 2.14. Insurance. Each of the Company and its material subsidiaries maintains, with reputable insurers or through self-insurance, insurance in such amounts, including deductible arrangements, and of such a character as is customary for companies engaged in the same or similar business. All policies of title, fire, liability, casualty, business interruption, workers’ compensation and other forms of insurance including directors and officers insurance held by the Company and its subsidiaries as of the date hereof, are in full force and effect in accordance with their terms. Neither the Company nor any of its subsidiaries is in Default under any provisions of any such policy of insurance and neither the Company nor any of its subsidiaries has received notice of cancellation of any such insurance except as has not had and would not reasonably be expected to have a Material Adverse Effect.

SECTION 2.15. Private Placement. Assuming that the representations of the Investors and Tengelmann set forth in Articles III and V are true and correct, the offer, sale, and issuance of the Shares in conformity with the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act, and applicable state securities laws.

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SECTION 2.16. Form S-3 Eligibility. The Company meets the eligibility requirements of General Instruction I to Form S-3 promulgated under the Securities Act.

SECTION 2.17. Listing and Maintenance Requirements. The Company has not, in the 12 months preceding the date hereof, received notice (written or oral) from any Trading Market on which any of its securities is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is in compliance with all such listing and maintenance requirements.

SECTION 2.18. Registration Rights. The Company has not granted or agreed to grant, and is not under any obligation to provide, any rights (including “piggyback” registration rights) to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently, except for those contained in the Amended and Restated Stockholder Agreement and the Amended and Restated Yucaipa Stockholder Agreement.

SECTION 2.19. No Restriction on the Ability to Pay Cash Dividends.  Except for the ABL Credit Agreement, neither the Company nor any of its material subsidiaries is a party to any contract, agreement, arrangement or other understanding, oral or written, express or implied, and is not subject to any provisions in its Charter or By-Laws or other governing documents or resolutions of the Board of Directors, that could restrict, limit, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Shares in the amounts contemplated by the Convertible Preferred Articles Supplementary.

SECTION 2.20. Inventories. Except as would not have a Material Adverse Effect, all items of inventory reflected on the latest balance sheet included in the Company’s SEC Reports (i) were acquired in the ordinary course of business generally consistent with past practice and (ii) were usable and saleable in the ordinary course of business generally consistent with past practice, except for normal shrinkage, spoilage and obsolescence.

SECTION 2.21. Contracts. (a) Except as have not had or would not reasonably be expected to have a Material Adverse Effect, (i) each Company Contract, assuming such Company Contract is a legal, valid and binding obligation of and enforceable against the other parties thereto in accordance with its terms, constitutes a valid and binding obligation of the Company or the subsidiary of the Company party thereto and is enforceable against the Company or such subsidiary, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (ii) each Company Contract, to the Company’s knowledge, is a valid, binding and enforceable obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

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(b)   Except as have not had or would not reasonably be expected to have a Material Adverse Effect, none of the Company or its subsidiaries and, to the Company’s knowledge, no other party to a Company Contract (other than any Collective Bargaining Agreement) is in breach or Default under any Company Contract (other than any Collective Bargaining Agreement). This subsection shall not apply to any Contract evidencing Indebtedness, which is covered by Section 2.12(k), or any Collective Bargaining Agreement, which is covered by Section 2.02(b).

ARTICLE III

Representations and Warranties of the Investors

Each Investor and, as applicable, Tengelmann, severally but not jointly, hereby represents and warrants to the Company, as of the date of this Agreement, as follows:

SECTION 3.01. Corporate Status. Tengelmann is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and has all requisite power and authority to carry on its business as it is now being conducted.

SECTION 3.02. Authorization; Noncontravention. (a) Authorization.  Each Investor has the legal capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. Tengelmann has all necessary power and authority to execute and deliver this Agreement and the Amended and Restated Stockholder Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, including the authorization by the Investors of the Investors’ Representative to take actions on their behalf as set forth in Section 5.05 of this Agreement. The execution, delivery and performance of this Agreement and the Amended and Restated Stockholder Agreement and the consummation by such Investor, Tengelmann and the Investors’ Representative of the transactions contemplated hereby and thereby, including the authorization by the Investors of the Investors’ Representative to take actions on their behalf as set forth in Section 5.05 of this Agreement, have been duly and validly authorized by all requisite action. This Agreement has been duly executed and delivered by such Investor and the Investors’ Representative and (assuming due authorization, execution and delivery by the Company) constitutes a valid and binding obligation of such Investor and the Investors’ Representative, and the Amended and Restated Stockholder Agreement, when executed and delivered by Tengelmann (assuming due authorization, execution and delivery by the Company and any other parties thereto), will constitute a valid and binding obligation of Tengelmann, enforceable against such Investor, Tengelmann and the Investors’ Representative, as applicable, in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorgani zation, moratorium and other similar Laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law).

(b) No Conflict. The execution, delivery and performance by such Investor and the Investors’ Representative of this Agreement and by Tengelmann of the

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Amended and Restated Stockholder Agreement do not, and the consummation of the Offering and the other transactions contemplated hereby and thereby and compliance with the provisions of this Agreement by the Investors and the Investors’ Representative and the Amended and Restated Stockholder Agreement by Tengelmann will not conflict with, or result in any Default under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the amendment of any term or provision of or the creation of any Encumbrance upon any of the assets of such Investor, Tengelmann or the Investors’ Representative under any provision of (i) the certificate of incorporation or bylaws or any relevant organizational documents of Tengelmann, (ii) any material Contract (with a party other than the Company) to which any of the Investors, the Investors ’ Representative or Tengelmann is a party or by which any of the Investors’, the Investors’ Representative’s or Tengelmann’ s assets are bound or (iii) any Law or Judgment, in each case applicable to any of the Investors, the Investors’ Representative or Tengelmann or their assets, other than, in the case of clauses (ii) or (iii), any such conflicts, Defaults, rights, losses, amendments or Encumbrances that would not reasonably be expected to materially impair or delay the ability of such Investor, the Investors’ Representative or Tengelmann to perform its obligations (if any) under this Agreement or, with respect to Tengelmann, the Amended and Restated Stockholder Agreement, or carry out the transactions contemplated hereby or thereby in accordance with the terms herein or therein. No material Permit, order or authorization of, or registration, declaration or filing with, or notice to, any Governmental Entity is required to be obtained or made by or with respect to any of the Investors or the Investors’ Representative in connection with the execution, delivery and performance of this Agreement, or the Amended and Restated Stockholder Agreement by Tengelmann or the consummation by such Investor, the Investors’ Representative or Tengelmann of the Offering or the other transactions contemplated by this Agreement or, with respect to Tengelmann, the Amended and Restated Stockholder Agreement, except for compliance with and filings under the Exchange Act, the Securities Act, state securities Laws or “blue-sky” laws and the rules and regulations of the NYSE.

SECTION 3.03. Securities Act. The Shares purchased by such Investor pursuant to this Agreement are being acquired with a view to distribution to Tengelmann, and such Investor shall not offer to sell or otherwise dispose of the Shares or the Underlying Securities so acquired by it in violation of any of the registration requirements of the Securities Act.

SECTION 3.04. Available Funds. The Investors have, or will have on or prior to the Closing, sufficient funds in their possession to permit them to acquire and pay for the Investor Shares to be purchased by them and to perform their obligations under this Agreement.

SECTION 3.05. Ownership of Common Stock. As of the date of this Agreement, the Investors and Tengelmann and their affiliates, taken together, are the beneficial owners, as defined in Rule 1 3d-3 promulgated under the Exchange Act, of no more than 24,080,115 shares of Common Stock.

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ARTICLE IV

Covenants

SECTION 4.01. Reasonable Best Efforts. (a) On the terms and subject to the conditions and limitations of this Agreement, including the provisions immediately below, each party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable.

(b)     If any objections are asserted with respect to the Offering or the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by any applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each party hereto shall promptly notify each of the other parties hereto and shall use its reasonable best efforts to resolve any such objections or suits which, in any case if not resolved, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Offering or the other transactions contemplated hereby; provided that neither the Company nor any of the Investors shall be required to sell, hold separate or otherwise dispose of any of their respective assets or assets of their respective subsidiaries, or conduct its business or the business of any of its subsidiaries, in a manner which would resolve such objections or suits.

(c)   Nothing in this Section 4.01 shall require the Investors to agree to any change to the terms of this Agreement, any Ancillary Agreements, the Company By-Law Amendment, the Senior Secured Notes or the Senior Secured Notes Offering, except, in the case of the Senior Secured Notes and the Senior Secured Notes Offering only, for such changes that would not (absent a waiver) cause the closing condition in Section 6.01(d) hereof to fail to be satisfied. In the event the obligations set forth in this Section 4.01 require the Investors to (i) make any payments of any money or incur any liability for fees, expenses or otherwise to any Third Party (other than ordinary course fees to advisors that would be incurred in connection with this Agreement absent the obligations in this Section 4.01) or (ii) resolve objections or suits, litigate or dispute any m atter with a Third Party (other than Yucaipa or its affiliates), the Company shall reimburse the Investors for all out-of-pocket costs and expenses (including legal fees) associated therewith within 10 Business Days of receiving a reasonably detailed invoice from the Investors’ Representative.

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SECTION 4.02. Fees and Expenses. (a) Upon the occurrence of the Closing, the Company shall reimburse the Investors’ Representative for all reasonable Third Party out-of-pocket costs and expenses incurred by the Investors, Tengelmann or the Investors’ Representative or on the Investors’, Tengelmann’s or the Investor’s Representative’s behalf in connection with this Agreement, the Ancillary Agreements, the Offering and the transactions contemplated by this Agreement and the Ancillary Agreements, including reasonable fees and expenses of counsel of Tengelmann.

(b)   On the Closing Date, the Company shall pay the Investors’ Representative a placement fee equal to $1,500,000.

(c)   On the Closing Date, the Company shall pay the Investors’ Representative a transaction advisory fee of $1,000,000.

SECTION 4.03. NYSE. Promptly following the Closing, the Company shall apply to cause the Underlying Securities with respect to the Investor Shares to be approved for listing on the NYSE.

SECTION 4.04. Use of Proceeds. The net proceeds from the Offering, the Yucaipa Initial Shares and the Senior Secured Notes Offering shall be used for general corporate purposes.

SECTION 4.05. Conduct of Business. Except for matters set forth in Section 4.05 of the Company Disclosure Letter, otherwise contemplated by this Agreement (including the Senior Notes Offering) or the Ancillary Agreements or as required by applicable Law, without the prior written consent of the Investors, from the date of this Agreement to the Closing Date, the Company shall not (i) conduct its business other than in the ordinary course in all material respects and in compliance in all material respects with applicable Law or (ii)take any action that is intended to result in any condition in Article VI (other than 6.01(d) or 6.02(h)) not being satisfied.

ARTICLE V

Additional Agreements

SECTION 5.01. Publicity. The Company and the Investors shall, and the Investors shall cause the Investors’ Representative to, communicate with each other and cooperate with each other prior to any public disclosure of the transactions contemplated by this Agreement. The Company, the Investors and the Investors’ Representative agree that no public release or announcement concerning the transactions contemplated hereby or by the Ancillary Agreements shall be issued by or as a result of the actions of any of them without the prior consent of the other parties hereto, except as such release or announcement may be required by Law or the rules and regulations of the NYSE, in which case the party required to make the release or announcement shall consult with the other parties hereto about, and allow the other parties hereto reasonable time (taking into account the circumst ances) to comment on, such release or announcement in advance of such issuance.

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SECTION 5.02. Transfer Restrictions. The Investors and Tengelmann acknowledge and agree that the Shares and the Underlying Securities (a) have not been registered under the Securities Act or under any state securities laws, (b) will be, when issued, restricted securities under the Securities Act and may not be offered or sold except pursuant to an effective registration statement or an available exemption from registration under the Securities Act and (c) shall be subject to the restrictions on transfer set forth in the Amended and Restated Stockholders Agreement.

SECTION 5.03. Purchase for Investment. Each Investor and Tengelmann (i) is acquiring the Shares pursuant to an exemption from registration under the Securities Act solely for investment with no present intention to distribute them to any person in violation of the Securities Act or any applicable U.S. state securities laws, (ii) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of the Offering and of making an informed investment decision, has conducted a review of the business and affairs of the Company that it considers sufficient and reasonable for purposes of purchasing the Investor Shares and has been provided an opportunity to ask questions of and receive answers from representatives of the Company concerning the terms and conditions of this Agreement, the Ancilla ry Agreements and the purchase of the Investor Shares, (iii) is able to bear the economic risk of the Offering and at the present time is able to afford a complete loss of such investment and (iv) with respect to Tengelmann, is an “institutional accredited investor” (as that term is defined by Rule 501 under the Securities Act).

SECTION 5.04. Legend. The Investors agree that the Shares and Underlying Securities will bear a legend substantially to the following effect and, in the case of the Underlying Securities, with such modifications as may reasonably be required:

“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. THIS INSTRUMENT IS ISSUED PURSUANT TO 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 JULY , 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN. THE SE CURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE

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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.

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.”

SECTION 5.05. Investors’ Representative. The parties hereto acknowledge and agree that Emil Capital Partners, LLC shall be the designated representative of the Investors, or the Investors’ 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 the Investors, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of the Investors, and 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 the Investors’ Representative and the Company shall be fully protected against liability in relying on the actions o f the Investors’ Representative as being authorized by the Investors.

ARTICLE VI

Conditions Precedent

SECTION 6.01. Conditions to Each Party’s Obligation. The obligation of the Investors to purchase and pay for the Investor Shares and the obligation of Company to issue such Investor Shares to the Investors is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

(a) No Injunctions or Restraints. No Law or injunction enacted, entered, promulgated, enforced or issued by any Governmental Entity preventing the

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consummation of the Offering or the transactions contemplated by the Ancillary Agreements shall be in effect.

(b)   Amended and Restated Stockholder Agreement. The Company and Tengelmann shall have duly authorized, executed and delivered the Amended and Restated Stockholder Agreement.

(c)   Yucaipa Investment. The Yucaipa Investors, the Existing Investors and the Investors’ Representative and the Company shall have entered into the Amended and Restated Yucaipa Stockholder Agreement and the closing under the Yucaipa Investment Agreement shall occur concurrently with, and be subject to, the Closing hereunder and each of the Amended and Restated Yucaipa Stockholder Agreement and the Yucaipa Investment Agreement shall be in the form delivered to the Investors on the date hereof.

(d) Senior Secured Notes Offering. The Senior Secured Notes Offering in an aggregate principal amount of at least $225,000,000 shall close prior to or concurrently with the Offering, and the terms and conditions of the Senior Secured Notes shall not be materially less favorable, in the aggregate, to the Company or to the Investors, as holders of the Convertible Preferred Stock, than the terms and conditions set forth in Section 6.01 of the Company Disclosure Letter.

SECTION 6.02. Conditions to Obligation of the Investors. The obligation of the Investors to purchase and pay for the Investor Shares is subject to the satisfaction (or waiver by Tengelmann) on or prior to the Closing Date of the following conditions:

(a)   Representations and Warranties. (i) The representations and warranties of the Company contained in this Agreement (other than in Sections 2.02(a) and 2.03(a), which Sections shall be the subject of Section 6.02(a)(ii)) shall be true and correct, without giving effect to any “materiality” or “Material Adverse Effect” qualifications therein as of the date of this Agreement, except to the extent that any failures of such representations and warranties to be so true and correct, individually or in the aggregate, have not had a Material Adverse Effect and (ii) the representations and warranties of the Company set forth in Sections 2.02(a) and 2.03(a) shall be true and correct in all material respects as of the date of this Agreement, except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date.

(b)   Performance of Covenants of the Company. The Company shall have performed or complied in all material respects with all covenants contained in this Agreement to be performed or complied with by the Company prior to or at the Closing.

(c) Company Closing Certificate. The Investors shall have received a certificate signed by the chief executive officer or the chief financial officer of the Company on behalf of the Company, dated as of the Closing Date, to the effect that the conditions set forth in Sections 6.02(a) and 6.02(b) have been satisfied (the “Company

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Closing Certificate”).

(d)   Opinion of Counsel. The Investors shall have received (i) an opinion dated as of the Closing Date of counsel to the Company, substantially in the form attached hereto as Exhibit C and (ii) an opinion dated as of the Closing Date of Maryland counsel to the Company, substantially in the form attached hereto as Exhibit D.

(e)   Articles Supplementary. The Company shall have filed the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland and the State Department of Assessments and Taxation of the State of Maryland shall have accepted the Convertible Preferred Articles Supplementary for record.

(f)    Board of Directors. The Board of Directors shall have taken all actions necessary and appropriate to permit Christian Wilhelm Erich Haub, Dr. Andreas Guldin, John D. Barline and Dr. Jens.-Jurgen Bockel to be elected to the Board effective immediately upon delivery of a written consent to such effect to the holders of the Investor Shares following the Closing.

(g)   Company By-Laws Amendment. The Company shall have adopted the Company By-Laws Amendment.

(h) Senior Secured Notes Offering. The Senior Secured Notes Offering in an aggregate principal amount of at least $225,000,000 shall close prior to or concurrently with the Offering, and (in addition to and without limitation of the closing condition in Section 6.01(d)), the terms and conditions of such Senior Secured Notes described in Section 6.02 of the Company Disclosure Letter shall not be changed without Investors prior written consent (which may be withheld in the Investors’ sole discretion).

SECTION 6.03. Conditions to Obligation of the Company. The obligation of the Company to sell the Investor Shares is subject to the satisfaction (or waiver by the Company) on or prior to the Closing Date of the following conditions:

(a)   Representations and Warranties. The representations and warranties of the Investors, the Investors’ Representative and Tengelmann made in this Agreement and the Ancillary Agreements shall be true and correct in all material respects as of the date of this Agreement, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

(b)   Performance of Covenants of the Investors and Tengelmann. The Investors, the Investors’ Representative and Tengelmann shall have performed or complied in all material respects with all covenants contained in this Agreement to be performed or complied with by the Investors, Investors’ Representative and Tengelmann prior to or at the Closing.

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(c) Investor Closing Certificates. The Company shall have received from each Investor a certificate, signed by the Investors’ Representative on behalf of such Investor, dated as of the Closing Date, to the effect that the conditions set forth in Sections 6.03(a) and 6.03(b) have been satisfied (the “Investor Closing Certificates”).

SECTION 6.04. Satisfaction of Sections 6.01(d) and 6.01(h). If the Company provides one Business Day advance written notice of the pricing of the Senior Secured Notes Offering, the Investors’ Representative shall cooperate in good faith with the Company on the pricing date, including to make available representatives authorized to evaluate whether the “description of the notes” from the offering memorandum for the Senior Secured Notes Offering satisfies the conditions set forth in Sections 6.01(d) and 6.01(h). If on the pricing date, the Investors’ Representative delivers a written notice agreeing that the conditions in Sections 6.01(d) and 6.01(h) have been satisfied, then such conditions shall irrevocably be deemed to be satisfied upon the Closing of the Offering so long as the terms of the Senior Secured Notes at Closing of the Offering ar e the same as the “description of the notes” from the offering memorandum.

SECTION 6.05. Frustration of Closing Condition. No party to this Agreement may rely on the failure of any condition set forth in this Article VI to be satisfied if such failure was caused by such party’s failure to cooperate or to use its reasonable best efforts to cause the Closing to occur, as required by Section 4.02.

ARTICLE VII

Termination

SECTION 7.01. Termination. (a) Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the Offering and the other transactions contemplated by this Agreement abandoned at any time prior to the Closing upon written notice (other than in the case of Section 7.01 (a)(i) below) from the terminating party to the non-terminating party specifying the subsection of this Section 7.01 to which such termination is effected:

(i)      by mutual written consent of the Company and the Investors;

(ii)     by the Company, if any of the conditions set forth in Section 6.01 or 6.03 shall have become incapable of fulfillment, and shall not have been waived by the Company;

(iii)    by the Investors, if any of the conditions set forth in Section 6.01 or Section 6.02 shall have become incapable of fulfillment, and shall not have been waived by the Investors;

(iv)    by the Company or the Investors, if the Yucaipa Investment Agreement is terminated; or

(v)     by the Company or the Investors, if the Closing does not occur on or prior to August 14, 2009;

provided, however, that the right to terminate this Agreement under the foregoing clauses

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(ii), (iii) and (v) of this Section 7.01(a) shall not be available to any party whose action or failure to act in violation of this Agreement has been a principal cause of, or resulted in, the event or circumstance giving rise to the right to terminate this Agreement.

(b) If this Agreement is terminated pursuant to Section 7.01 (a)(ii) (except as a result of a material breach by the Investors), Section 7.01 (a)(iii), Section 7.01 (iv) or Section 7.01(v), then the Company shall pay and reimburse the Investors’ Representative for all reasonable Third Party out-of-pocket costs and expenses incurred by the Investors, the Investors’ Representative or Tengelmann or on the Investors’, the Investors’ Representative’s or Tengelmann’s behalf in connection with this Agreement, the Ancillary Agreements, the Offering and the transactions contemplated by this Agreement and the Ancillary Agreements. Payment of such fees and expenses shall be made by the Company to the Investors’ Representative (by wire transfer of immediately available funds to an account designated by the Investors’ Representative ) not later than two Business Days after delivery to the Company by the Investors’ Representative of a notice of demand for payment.

SECTION 7.02. Survival of Representations. Except as set forth below, the representations and warranties of the parties contained in this Agreement and in any document delivered in connection herewith shall not survive the Closing Date. The representations and warranties contained in the first sentence of Section 2.13 and Sections 2.02(b), 2.12, 2.15, 2.16, 2.17, 2.18, 2.19 and 3.02(b) shall survive until the first anniversary of the Closing Date. The representations and warranties contained in Sections 2.02(a), 2.03 and 3.02(a) shall survive indefinitely.

ARTICLE VIII

General Provisions

SECTION 8.01. Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Except as otherwise provided in this Agreement, any failure of any party to comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

SECTION 8.02. Assignment. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party without the prior written consent of the other parties hereto. Notwithstanding the foregoing, (a) each Tengelmann Partner may assign its right to purchase the Investor Shares to a controlled affiliate of such Tengelmann Partner or Tengelmann; provided that the representations and warranties of such Tengelmann Partner made in this Agreement and the Ancillary Agreements shall be true and correct in all material respects as if given by such controlled affiliate or Tengelmann and such controlled affiliate shall become party to this Agreement and the Amended and Restated Stockholder Agreement by execution of a

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joinder hereto or thereto, and each such controlled affiliate shall constitute a “Tengelmann Partner” for purposes hereunder as if it were a “Tengelmann Partner” as of the date hereof, and (b) each Tengelmann Partner may assign its rights hereunder by way of security; provided, however, that no assignment shall limit or affect the assignor’s obligations hereunder. Any attempted assignment in violation of this Section 8.02 shall be void.

SECTION 8.03. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such permitted assigns, any legal or equitable rights hereunder.

SECTION 8.04. Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when received, as follows:

if to the Investors, Tengelmann or the Investors’ Representative,

Tengelmann Warenhandelsgesellschaft KG
Wissollstrasse 5-43

D-45478 Mülheimandor Ruhr

Attention: Mr. Christian Haub
Dr. Frank Hartmann

with a copy to (which shall not constitute notice to any Investor, Tengelmann or the Investors’ Representative):

Cravath, Swaine & Moore LLP

825 Eighth Avenue

New York, New York 10019

Attention: Sarkis Jebejian, Esq.
LizabethAnn Eisen, Esq.; and

if to the Company;

The Great Atlantic & Pacific Tea Company, Inc.
Two Paragon Drive

Montvale, New Jersey 07645

Attention: Allan Richards, Esq.

with copies to (which shall not constitute notice to the Company):

Akin Gump Strauss Hauer & Feld LLP
One Bryant Park

New York, New York 10036
Attention: Patrick J. Dooley, Esq.,

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and

Cahill Gordon & Reindel LLP
80 Pine Street

New York, New York 10005

Attention: Kenneth W. Orce, Esq.
John Schuster, Esq.

SECTION 8.05. Interpretation; Exhibits and Schedules; Certain Definitions. The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The term “or” is not exclusive. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated.

For all purposes hereof:

“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 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 prior to the date hereof).

“Action” means any action, cause of action, claim, prosecution, investigation, suit, litigation, grievance, arbitration or other proceeding, whether civil, criminal or administrative, at Law or in equity, by or before any Governmental Entity.

“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. A person shall be deemed to control another person if such first person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise.

“By-Laws” means the By-Laws of the Company, as amended and restated on January 17, 2008.

“Business Day” means any day, other than a Saturday, Sunday or a day on which banks or national securities exchanges located in New York shall be authorized by Law to close.

“Capital Lease Obligations” means the obligations of the Company and its subsidiaries on a consolidated basis to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a

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consolidated balance sheet of the Company and its subsidiaries under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board, as amended) and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount of such obligations, determined in accordance with GAAP (including such Statement No. 13).

“Charter” means the Articles of Amendment and Restatement of the Articles of Incorporation of the Company accepted for record by the State Department of Assessments and Taxation of the State of Maryland on July 1, 2008.

“ChaseMellon Warrants” means the warrants issued by Pathmark Stores, Inc. pursuant to the Warrant Agreement dated as of September 19, 2000 between Pathmark Stores, Inc. and ChaseMellon Shareholder Services, LLC, and assumed by the Company.

“Code” means the Internal Revenue Code, as amended, and the rules and regulations promulgated thereunder.

“Collective Bargaining Agreement” means any collective bargaining agreement or any other labor-related agreement with any labor union or labor organization to which the Company or any of its subsidiaries is a party.

“Company By-Laws Amendment” means the amendments to the By-Laws as adopted by 66.67% of the directors then serving on the Board of Directors, to implement the provisions set forth in Sections 2.01, 2.04 and 8.01 of the Amended and Restated Stockholder Agreement and Sections 2.01, 2.05 and 8.01 of the Amended and Restated Yucaipa Stockholder Agreement, to provide the Maryland Control Share Acquisition Act (Section 3-701, et seq. of the MGCL) shall not apply to the Investors or Tengelmann or any of their respective affiliates and any other amendments to the By-Laws required to implement the transactions contemplated hereby or by the Ancillary Agreements.

“Company Contract” means, collectively, the following Contracts to which the Company or any of its subsidiaries is a party or by which any of its or their respective assets are bound:

(i)   any Contract evidencing Indebtedness over $5,000,000;

(ii)   any Collective Bargaining Agreement;

(iii)  any partnership or joint venture Contract;

(iv)  any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);

(v) any Contract which contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or its subsidiaries, or which restricts the conduct of any line of business by the Company or its subsidiaries or any geographic area in which the Company or any of its subsidiaries may conduct business, in each case in any material respect;

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(vi)  any Contract providing for capital expenditures or the acquisition or construction of fixed assets which requires payments by any of the Company or its subsidiaries in excess of $3,000,000 in any year;

(vii)   any Contract for the sale or other transfer of Owned Real Property or other material tangible assets having a fair market value in excess of $3,000,000 that has not yet been consummated, other than sales of inventory in the ordinary course of business generally consistent with past practice;

(viii)   any Contract with an affiliate of the Company or any officer, director, employee or related persons (as defined in Regulation S-K Item 404) of the Company;

(ix)    any distribution, supply, vendor, inventory purchase, sales agency or advertising Contract (other than purchase orders entered into in the ordinary course of business generally consistent with past practice) involving annual expenditures by any of the Company or its subsidiaries in excess of $5,000,000 which is not cancelable (without giving rise to any penalty or additional liability or cost) within one year;

(x)  (A) any other Contract (excluding Company Leases), not otherwise covered by clauses (i) through (x) of this definition of “Company Contract”, that requires payments by the Company or its subsidiaries in excess of $5,000,000 during any one year and (B) is not cancelable on 90 days, or less notice; and

(xi) any written commitment (including any letter of intent or memorandum of understanding) to enter into any agreement of the type described in clauses (i) through (x) of this definition of “Company Contract”.

“Company Plans” means all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, incentive, stock option, stock purchase, restricted stock, phantom stock or other stock-based compensation, deferred compensation, medical, life insurance, disability, fringe benefit, supplemental executive retirement, severance or other compensation or benefit plans, programs, policies, practices, trusts or arrangements, and all employment, termination, severance, change in control, compensation or other Contracts or agreements, to which the Company or any of its subsidiaries or ERISA Affiliates is a party, or which are sponsored, maintained or contributed to by the Company or any of its subsidiaries or ERISA Affiliates or as to which the Com pany or any of its subsidiaries or ERISA Affiliates has any liability and any material Contracts, arrangements, agreements, policies, practices or understandings between the Company or any of its ERISA Affiliates and any current or former employee, director or consultant of the Company or of any of its subsidiaries, including any Contracts, arrangements or understandings relating to a change in control of the Company; provided, however, that the term “Company Plans” shall exclude any plan that is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

“Contract” means any contract, agreement, commitment, lease, purchase order, license, mortgage, indenture, supplemental indenture, line of credit, note, bond, loan, credit agreement, capital lease, sale/leaseback arrangement, concession agreement,

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franchise agreement or other instrument, including all amendments, supplements, exhibits and attachments thereto.

“Convertible Notes” means the Company’s 5.125% Convertible Senior Notes due 2011 and the 6.75% Convertible Senior Notes due 2012.

“Copyrights” means all rights in a work of authorship and all copyrights (including all registrations and applications to register the same).

“Default” means in violation of, or in default under (or, with or without the giving of notice or lapse of time, or both, would be in default) according to the terms of the relevant document or agreement.

“DOJ” means the United States Department of Justice.

“Encumbrance” means any lien, encumbrance, security interest, pledge, mortgage, hypothecation, charge, restriction on transfer of title, adverse claim, title retention agreement of any nature or kind, or other encumbrance, except for any restrictions arising under any applicable securities Laws or pursuant to the Amended and Restated Stockholder Agreement or the Amended and Restated Yucaipa Stockholder Agreement.

“Environment” means ambient air, indoor air, surface water, groundwater and surface and subsurface strata and natural resources such as wetlands, flora and fauna.

“Environmental Law” means any Law and the common law relating to (i) pollution or the protection of the Environment, (ii) the protection of human health and safety as it pertains to Hazardous Materials or (iii) the generation, handling, use, presence, treatment, transport, storage, disposal or Release of any Hazardous Materials.

“ERISA Affiliate” means any trade or business, whether or not incorporated, which together with the Company would be deemed a “single employer” within the meaning of Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA.

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

“Facilities” means any store, office, plant or warehouse owned or leased by the Company or any of its subsidiaries.

“FTC” means the United States Federal Trade Commission.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

“Governmental Entity” means any domestic or foreign, transnational, national, Federal, state, municipal or local government, or any other domestic or foreign governmental, regulatory or administrative authority, or any agency, board, department,

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commission, court, tribunal or instrumentality thereof.

“Hazardous Materials” means any pollutant, contaminant, waste, chemical, compound, substance or material, including any petroleum or petroleum product or by-product, asbestos-containing material, urea formaldehyde foam insulation, and mold, regulated under any Environmental Law.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“including” means including, without limitation.

“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.

“Intellectual Property” means all Trademarks, Patents, Copyrights, Trade Secrets, service marks, service mark rights, computer programs, moral rights and the benefits of any waivers of moral rights and any other proprietary intellectual property rights.

“Judgment” means any applicable judgment, order or decree of any Governmental Entity.

“knowledge of the Company” or “to the Company’s knowledge” means the actual knowledge of the particular fact in question by the individuals set forth in Section 9.05 of the Company Disclosure Letter.

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“Labor Laws” means any applicable Law relating to employment standards, employee rights, health and safety, labor relations, workplace safety and insurance or pay equity.

“Laws” means any applicable statute, code, rule, regulation, ordinance, Judgment, or other pronouncement of any Governmental Entity.

“Material Adverse Effect” means any change, event or circumstance that, individually or in the aggregate with all other changes, events and circumstances, has had a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, other than any change, event or circumstance arising out of: (a) general economic (including changes in prevailing interest rates, credit availability and liquidity, currency exchange rates, and price levels or trading volumes in the United States or foreign securities markets), legal, regulatory or political conditions in the United States of America or geographic regions in which the Company and its subsidiaries operate; (b) conditions generally affecting the industries in which the Company and its subsidiaries operat e; (c) the announcement, pendency or consummation of the Offering or the other transactions contemplated hereby or by the Ancillary Agreements; (d) any change in the market price or trading volume of the Common Stock in and of itself (but not any change, event or circumstance that may be underlying such decrease to the extent that such change, event or circumstance would otherwise constitute a Material Adverse Effect); (e) any changes in the securities markets generally, or in the credit markets, any downgrades in the credit markets, or adverse credit events resulting in deterioration in the credit markets generally or in respect of the customers of the Company; (f) the commencement or escalation of a war or armed hostilities or the occurrence of acts of terrorism or sabotage; (g) earthquakes, hurricanes or other natural disasters; (h) compliance with the requirements of changes in Law, GAAP or other accounting requirements or any interpretation thereof; (i) any failure by the Company to meet published revenue or earnings projections (but not any change, event or circumstance that may be underlying such failure to the extent that such change, event or circumstance would otherwise constitute a Material Adverse Effect); (j) any adverse effect on the Company under Section 382 of the Code resulting from an “ownership change” of the Company as defined in Section 3 82(g) of the Code or (k) any legal claims or other proceedings made by any of the Company’s stockholders or debtholders arising out of or related to the Offering.

“NYSE” means the New York Stock Exchange.

“Patents” means all patents, patent rights and patent applications, including divisions, continuations, continuations-in-part, reissues, re-examinations and all extensions thereof.

“Permits” means, collectively, all applicable consents, approvals, permits, orders, authorizations, licenses and registrations from Governmental Entities.

“Permitted Encumbrances” means: (i) mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, construction and other Encumbrances arising or incurred in the ordinary course of business and not yet due and payable or being

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contested in good faith by appropriate proceedings; (ii) Encumbrances for Taxes, utilities and other governmental charges that, in each case, are not yet due or payable, are being contested in good faith by appropriate proceedings or may thereafter be paid without giving rise to any material penalty or material additional cost or liability; (iii) matters of record or registered Encumbrances affecting title to any owned or leased real property of a person and its subsidiaries; (iv) requirements and restrictions of zoning, building and other applicable Laws and municipal by-laws, and development, site plan, subdivision or other agreements with municipalities that do not individually or in the aggregate materially and adversely affect the use of the owned or leased real property of a person and its subsidiaries affected thereby as currently used in the business of such person and its subsidiaries; ( v) statutory Encumbrances of landlords for amounts not yet due and payable; (vi) Encumbrances arising under conditional sales Contracts and equipment leases with third parties entered into in the ordinary course of business generally consistent with past practice; (vii) defects, irregularities or imperfections of title and other Encumbrances which, individually or in the aggregate, do not materially impair the continued use (in a manner generally consistent with current use in the business of the person and its subsidiaries) of the asset or property to which they relate; and (viii) with respect to the Company and its subsidiaries, Encumbrances arising under the ABL Credit Agreement.

“person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.

“Real Property” means, collectively, the Owned Real Properties, the Company Leases and the Company Tenant Leases.

“Registered Intellectual Property” means all (i) registered trademarks and service marks and applications therefor, (ii) registered copyrights and applications therefor, (iii) issued patents and patent applications and (iv) domain names, in each case, that are owned by the Company or any of its subsidiaries and are material to the conduct of the business of the Company and its subsidiaries.

“Release” means any spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping or disposing of Hazardous Materials (including the abandonment or discarding of barrels, containers or other closed receptacles containing Hazardous Materials) into or through the Environment or into or out of any real property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Series B Yucaipa Warrants” means the 6,965,858 warrants, exercisable at $32.40, issued by the Company on December 3, 2007.

“SOX” means the Sarbanes-Oxley Act of 2002.

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“subsidiary” of any person means, on any date, any person (i) the accounts of which would be consolidated with and into those of the first person in such person’s consolidated financial statements if such financial statement 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) an amount of the voting securities, other voting ownership or voting partnership interests of which is 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) is owned, directly or indirectly, controlled or held by such first person or by one or more subsidiaries of such first person.

“Tax” means any foreign, Federal, state or local income, sales and use, excise, franchise, real and personal property, gross receipt, capital stock, production, business and occupation, disability, estimated, employment, payroll, severance or withholding tax or other tax, duty, fee, impost, levy, assessment or charge imposed by any taxing authority, and any interest or penalties and other additions to tax related thereto.

“Tax Returns” means any return, report, declaration, information return or other document required to be filed with any Tax authority with respect to Taxes, including any amendments thereof.

“Third Party” means any person other than the Company, the Investors, the Investors’ Representative or Tengelmann or any of their respective affiliates.

“Trade Secrets” means all proprietary, confidential information, formulas, processes, data, know-how, devices or compilations of information used in a business that confer a competitive advantage over those in similar businesses who do not possess them or know how to use them.

“Trademarks” means all trademarks, trademark rights, trade names, trade name rights, brands, logos, trade dress, business names and Internet domain names, together with the goodwill associated with any of the foregoing and all registrations and applications for registration of the foregoing.

“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin Board on which the relevant security of the Company is listed or quoted for trading on the date in question.

“Voting Debt” means bonds, debentures, notes or other debt securities having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) generally in the election of directors of the Company or other matters on which holders of the Common Stock may vote.

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

SECTION 8.06. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

SECTION 8.07. Entire Agreement. This Agreement, the Ancillary Agreements and the Confidentiality Agreement, along with the Company Disclosure Letter, the Schedules and the Exhibits thereto, contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. None of the parties shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein or in the Ancillary Agreements or the Confidentiality Agreement.

SECTION 8.08. Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances.

SECTION 8.09. Consent to Jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of New York, New York County and (b) the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, any Ancillary Agreement or any transaction contemplated hereby or thereby. Each party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Section 8.09. Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, any Ancillary Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

SECTION 8.10. Governing Law. This Agreement shall be governed by

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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.

SECTION 8.11. Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement, any Ancillary Agreement or any transaction contemplated hereby or thereby. Each party (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 and the Ancillary Agreements, as applicable, by, among other things, the mutual waivers and certifications in this Section 8.11.

SECTION 8.12. No Personal Liability of Partners, Directors, Officers,  Owners, Etc. No director, officer, employee, incorporator, stockholder, managing member, member, general partner, limited partner, principal or other agent of Tengelmann (other than the Investors) shall have any liability for any obligations of the Investors or Tengelmann under this Agreement or for any claim based on, in respect of, or by reason of, the obligations of the Investors or Tengelmann hereunder. The Company waives and releases all such liability. This waiver and release is a material inducement to the Investors’ entry into this Agreement.

SECTION 8.13. Rights of Holders. Each party to this Agreement shall have the absolute right to exercise or refrain from exercising any right or rights that such party may have by reason of this Agreement, including, without limitation, the right to consent to the waiver or modification of any obligation under this Agreement, and such party shall not incur any liability to any other party or other holder of any securities of the Company as a result of exercising or refraining from exercising any such right or rights.

SECTION 8.14. Adjustment in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof, each reference in this Agreement and the Ancillary Agreements to a number of shares or a price per share shall be amended to appropriately account for such event.

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[Signature page to follow.]

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IN WITNESS WHEREOF, the Company, the Investors, Tengelmann (solely for the purposes of Articles In and V of this Agreement) and the Investors’ Representative (solely for purposes of Section 5.05 of this Agreement) have duly executed this Agreement as of the date first written above.

	ERIVAN KARL HAUB,
	By:	Christian Wilhelm Erich Haub
	Attorney-in-Fact
	By:	Christian Wilhelm Erich Haub
	Attorney-in-Fact
	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
by			/s/ Allan Richards
		Name:
		Title:

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Solely for the Purposes of Articles III and V of this Agreement

TENGELMANN WARENHANDELSGESELLSCHAFT KG,

by Tengelmami Verwaltungs-und Beteiligungs GmbH, as Managing Partner

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	Solely for the Purposes of Section 5.05 of this Agreement
	Emil Capital Partners, LLC, as Investors’ Representative
by
	me: Dr. Andreas Guldin
	Ale: C A Executive Officer

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EXHIBIT A

Convertible Preferred Stock Articles Supplementary

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&nbs p;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.

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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 sh are 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 wi th 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, dated as of the date hereof, between the Company and Tengelmann.

“Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated Yucaipa Stockholder Agreement, dated as of the date hereof, 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.

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“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

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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).

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“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 1 3(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, survi ving 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

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(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.

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“Nonpayment” has the meaning set forth in Section 1 5(d)(i).

“Nonpayment Preferred Director” has the meaning set forth in Section 1 5(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.

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“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 1 5(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 1 5(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 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

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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 1 3D 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 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

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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 lega lly 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 [·], 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.

(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.

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(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 c ommences 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 Pay ment Date. However, such shares, upon surrender for conversion, must be accompanied by (i) 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

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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)&n bsp;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.

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.

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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 1 8.99% 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 distr ibutions 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 show n 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;

(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

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(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 indenture governing the Senior Secured Notes) 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 acc rued 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 Noti ce 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;

(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;

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(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 Conve rtible 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 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 delive ry 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

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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 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 oth er 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

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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
[·]-09	50.0000	46.0003	41.5267	34.8385	26.1594	21.1836	14.3705	10.9497	7.2809	5.6892
[·]-10	50.0000	43.9440	39.6511	33.0145	25.0260	20.2654	13.5942	10.2582	7.0385	5.1628
[·]-11	50.0000	41.1360	37.1115	30.9136	23.4248	18.7203	12.7812	9.5478	6.4523	5.0291
[·]-12	50.0000	37.2409	33.5946	27.9166	21.1402	16.8786	11.3230	8.6454	5.7261	4.4736
[·]-13	50.0000	31.9489	28.7922	24.0022	18.0230	14.3540	9.6154	7.3421	4.9131	3.8419
[·]-14	50.0000	24.8885	22.1294	18.3662	13.7871	11.0362	7.3390	5.5413	3.6946	2.7682
[·]-15	50.0000	22.2222	13.4875	10.6574	7.9701	6.3473	4.2364	3.1793	2.1144	1.5746
[·]-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.

(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,

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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 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 certificate s for

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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:

CR1 = CR0 ×	OS1
	OS0

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 options that by their terms will also be issued to Holders upon conversion of their Convertible Preferred Stock into

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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:

	(OS0+ X)
CR1 = CR0 ×	(OS0+ Y)

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:

		SP0
CR1 = CR0 ×	(SP0 – FMV)

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;

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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:

	(FMV0 + MP0)
CR1 = CR0 ×
	MP0

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:

	SP0
CR1 = CR0 ×	(SP0 -C)

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;

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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:

	(AC + (SP1 × OS1))
CR1 = CR0  ×	(SP1 x OS0)

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.

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(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.

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(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

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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 th e 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 Per son. 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

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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 da te 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 Hold ers 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

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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 1 5(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 Se ction 1 5(b)(iv) or 1 5(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 1 5(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 1 5(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

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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 1 5(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 1 5(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 c lass 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  Preferre d 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 1 5(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 1 5(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 Pr eferred 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

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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 1 5(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 t o Section 1 5(d)(iv) or 1 5(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 1 5(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

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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 re maining 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.

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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.

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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 St ock 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 Tengelmann Party; provided that the Transfer Agent shall exchange Series A-Y Convertible

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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 recor ds 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.

90

IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to be duly executed this [·]th day of July, 2009.

		THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
		By:
			Name:
			Title:
ATTEST:
By:
	Name:
	Title:

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 [·], 2 009, 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 JULY [·], 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 IT S 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 redem ption 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 July     , 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.

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 July       , 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)o 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)o pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);

(3)o outside the United States in a transaction complying with Regulation S under the Securities Act; or

(4)o 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:

C-1

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

,        [              ]

Attn: [                           ]

C-2

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 July       , 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)o 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)o pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);

(3)o outside the United States in a transaction complying with Regulation S under the Securities Act;

(4)o 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) o 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:

D-1

Dated:

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

,        [              ]

Attn: [                           ]

D-2

EXHIBIT B

Amended and Restated Stockholder Agreement

AMENDED AND RESTATED TENGELMANN STOCKHOLDER AGREEMENT

by and among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

and

TENGELMANN WARENHANDELSGESELLSCHAFT KG

Dated as of July     , 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	35
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

		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	47
SECTION 8.07.	Fees and Expenses	47
SECTION 8.08.	Access to Information; Financial Statements	47
SECTION 8.09.	Amendments; Waivers	48
SECTION 8.10.	Interpretation	48
SECTION 8.11.	Severability	48
SECTION 8.12.	Counterparts	48
SECTION 8.13.	Entire Agreement; No Third-Party Beneficiaries	49
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

AMENDED AND RESTATED TENGELMANN STOCKHOLDER AGREEMENT dated as of July     , 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 Shar es”), 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:

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 1 3D 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.

2

“beneficial owner” and words of similar import have the meaning assigned to such terms in Rule 1 3d-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

3

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 the date hereof, 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 r ata 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.

4

“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

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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.

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“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 1 3D Group with Tengelmann or any of its Affiliates and (ii) Yucaipa and its Affiliates and any Person included in any 1 3D 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

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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

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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 1 3D 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 Ten gelmann, 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.

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“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	3.0 1(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)

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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

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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 (a s 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

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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 compa rable 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).

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(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 1 3D 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 S ection 15(d) of the Convertible Preferred Articles Supplementary).

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(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 2.0 1(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.

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(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 D irector 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%:

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(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 here of;

(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;

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(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

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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,

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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; or

(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

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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 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 Secu rities 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

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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 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 regi stration 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).

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(e)     Notwithstanding the foregoing provisions of this Section 3.01, Tengelmann 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 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 b y 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 c ontrol the determination of the form of any offering contemplated by this Section 3.02, including whether any such

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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) 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 i ncluded 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, s ecurities 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 purs uant 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

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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 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 Y ucaipa 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;

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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 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 lift ing 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,

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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 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 am endment;

(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

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customarily covered by comfort letters as such Underwriter and Tengelmann 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 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 int ended method of

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disposition) and (ii) Tengelmann 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 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

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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) o r (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

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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, 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 wi th 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.

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(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) p ay 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 unr easonably 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 pro priety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent

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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 p roportion 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 wil l 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) t he 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

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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 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.

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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 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 wer e 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

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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 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 u pon 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 Per son or Persons to which the Company intended to sell such New Equity Securities at a price and

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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.

(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”).

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(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.

(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,

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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 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 V oting 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       , 20 10,(1) 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 Compan y 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

(1) 1 year from closing.

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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.

(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 (in cluding 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

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(unless a longer period of time is necessary to comply with the requirements of the HartScott-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 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 pur chase 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 Sec tion 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

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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 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 nu mber 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 a reas 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

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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 (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 preexisting 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, stoc kholders, 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 i ts 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

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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 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

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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.

(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,

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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,

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.

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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 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 jeopa rdize 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 Tengelm ann with access to information necessary in connection with such financial statements and financial reporting.

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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 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 Agreem ent. 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 modi fy 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

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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.

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 it s 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

49

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 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,

50

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 8.18(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.]

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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:

Name: Title:

TENGELMANN WARENHANDELSGESELLSCHAFT KG,
By:	Tengelmann Verwaltungs-und Beteiligungs GmbH, as Managing Partner
	By:
		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 C

Amended and Restated By-Laws of the Company

Exhibit A

Opinion of Counsel

July [•], 2009

To the addressees listed on Exhibit A-1 and Exhibit A-2

attached to this opinion letter

Re:Issuance of Convertible Preferred Stock by The Great Atlantic &
Pacific Tea Company, Inc.

Ladies and Gentlemen:

We have acted as counsel to The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), in connection with the issuance of [•] shares of convertible preferred stock, Series A-T and [•] shares of convertible preferred stock, Series A-Y (the convertible preferred stock, Series A-T and Series A-Y together, the “Convertible Preferred Stock”) pursuant to (i) those certain Investment Agreements, each dated as of [July     , 2009] (each, an “Agreement” and together, the “Agreements”), by and among the Company, among others, and each of the addressees named on Exhibit A-1 and Exhibit A-2, respectively, attached hereto (the “Transaction”) and (ii) the other Transaction Documents (as defined below). This opinion letter is rendered at the Company’s request pursuant to Section 6.02(d) of the Agreements. All capitalized terms used in this opinion letter, without definition, have the meanings assigned to them in the Agreements.

In connection with this letter, we have examined executed originals or copies of executed originals of each of the documents listed on Exhibit B attached hereto (collectively, the “Transaction Documents”). In addition, we have examined the following documents (collectively, the “Due Diligence Documents”): (a) copies of the documents listed on Exhibit C attached hereto (collectively the “Constituent Documents” of the Company), (b) a certificate executed by the Company’s Secretary, dated as of [July     , 2009], certifying as to, among other things, resolutions approved at a meeting of the Company’s board of directors held on [July     , 2009] authorizing the execution and delivery of t he Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby, (c) copies of the documents listed on Exhibit D attached hereto (the “Reviewed Documents”), and (d) an officer’s certificate of the Company dated as of [July     , 2009], certifying certain factual matters related to the delivery of this opinion.

We have examined originals or certified copies of such corporate records of the Company and other certificates of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter. As to various questions of fact relevant to this opinion letter, we have relied, without independent investigation, upon certificates of public officials, certificates of officers of the Company and representations and warranties of the Company in the Transaction Documents, where applicable, all of which we assume to be true, correct and complete. We have made no investigation or review of any matters relating to the Company or any other Person other than as expressly listed herein. We wish to inform you that our knowledge is necessarily limited due to the limited scope of our review. In addition, we have made no inquiry of the Company or any other individual, partnership , limited liability company, corporation, association, joint stock company, trust, entity, joint venture, labor organization, unincorporated organization, or governmental authorities (each, a “Person”) regarding, and no review of, any judgments, orders, decrees, franchises, licenses, certificates, permits or other public records, other than the officer’s certificate described above, and our “knowledge” of any such matters is accordingly limited.

We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all copies submitted to us as conformed, certified or reproduced copies, and the conformity of the certificates for the Convertible Preferred Stock to the specimen[s] thereof we have reviewed. We have also assumed (i) the legal capacity of natural Persons, (ii) the corporate or other power and valid and due authorization of each Person not a natural person to execute and deliver the Transaction Documents and to consummate the transactions contemplated by the Transaction Documents, (iii) the due execution and delivery of each Transaction Document by all parties thereto and (iv) that each Transaction Document constitutes the legal, valid and binding obligation of each party thereto other than the Company, enforceable against such par ty in accordance with its terms.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that:

1.The Agreements constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.

2.The execution and delivery of the Transaction Documents by the Company do not, and the performance by the Company of the transactions contemplated thereby, including, without limitation, the issuance and sale of the Convertible Preferred Stock, do not and will not (a) result in any violation of law, rule or regulation of any Included Laws (as defined below) or (b) breach or result in a default of the Amended and Restated Credit Agreement dated as of December 27, 2007, by and among the Company, the other borrowers party thereto, the lenders party thereto, and Bank of America, N.A., as administrative agent and collateral agent, as amended by the First Amendment To Amended and Restat ed Credit Agreement dated as of April 4, 2008 as amended by the Second Amendment To Amended and Restated Credit Agreement dated as of July     , 2009 (the “Amended and Restated Credit Agreement”) or any of the Reviewed Documents.

3.  No consent, authorization or approval or other action by, and no notice to or filing with, any U.S. Federal or State of New York governmental authority or agency is required to be obtained or made by the Company under the Included Laws for the due execution and delivery of the Agreements by the Company and the performance by the Company of its obligations contemplated by the Transaction Documents, except for (i) those which have already been obtained, (ii) filings required under Federal or state securities laws with respect to the transactions contemplated by the Transaction Documents and (iii) routine filings necessary in connection with the conduct of the business of the Company. Our opinion herein is otherwise subject to

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the timely and proper completion of all filings and other actions contemplated herein where such filings and actions are to be undertaken on or after the date hereof.

4.  Assuming that the representations and warranties of the parties thereto in the Investment Agreements are true and assuming compliance by the parties thereto with their respective covenants and agreements set forth therein and assuming no actions having been or being taken by the parties thereto (other than the Company) or Tengelmann which would require registration of the Investor Shares under the Securities Act of 1933, as amended, it is not necessary in connection with the offer, sale and delivery of the Investor Shares to the Investors pursuant to the Investment Agreements to register the Investor Shares under the Securities Act of 1933, as amended; it being understood that we do not express any opinion as to any subsequent reoffer or resale of such Investor Shares.

The opinions and other matters in this opinion letter are qualified in their entirety and subject to the following:

A.We express no opinion as to the laws of any jurisdiction other than the Included Laws. We have made no special investigation or review of any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”), or any judgments, decrees, franchises, certificates, permits or the like, other than a review of (i) public records as specifically listed herein, (ii) the Laws of the State of New York or (iii) the Federal Laws of the United States of America. For purposes of this opinion, the term “Included Laws” means the items described in clauses (ii) and ( iii) of the preceding sentence that are, in our experience, normally applicable to transactions of the type contemplated in the Transaction Documents. The term Included Laws specifically excludes (a) Laws of any counties, cities, towns, municipalities and special political subdivisions and any agencies thereof; (b) zoning, land use, building and construction Laws; (c) Federal Reserve Board margin regulations; (d) any antifraud, environmental, labor, tax, insurance, antitrust, or intellectual property Laws; (e) any Laws that may be applicable to the Company and its subsidiaries by virtue of the particular nature of the business conducted by them or any goods or services provided by them or property owned or leased by them and (f) Federal or state securities or blue sky Laws (other than as set forth in paragraph 4 above).

B.When used in this letter, the phrases “known to us”, “knowledge”, “to our actual knowledge”, “of which we are aware” and similar phrases (i) mean the conscious awareness of facts or other information by (a) the lawyer in our firm who signed this letter, (b) any lawyer in our firm actively involved in negotiating and preparing the Transaction Documents and (c) solely as to information relevant to a particular opinion, issue or confirmation regarding a particular factual matter, any lawyer in our firm who is primarily respons ible for providing the response concerning that particular opinion, issue or confirmation and (ii) do not require or imply (a) any examination of this firm’s, such lawyer’s or any other person’s or entity’s files, (b) that any

3

inquiry be made of the client, any lawyer (other than the lawyers described above), or any other person or entity or (c) any review or examination of any agreements, documents, certificates, instruments or other papers other than the Transaction Documents, the Due Diligence Documents and the Reviewed Documents.

C.This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other Person, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.

D.For purposes of this opinion letter, the phrase “transactions contemplated by the Transaction Documents” and similar phrases mean (i) transactions contemplated by the Transaction Documents and (ii) the performance by the Company of its obligations under the Transaction Documents.

E.The matters expressed in this opinion letter are subject to and qualified and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, (ii) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief (regardless of whether enforcement is sought in a proceeding at law or in equity), (iii) commercial reasonableness and unconscionability and an implied covenant of good faith and fair dealing, (iv) the power of the courts to award damages in lieu of equitable remedies and (v) se curities Laws and public policy underlying such Laws with respect to rights to indemnification and contribution. Although it appears that the requirements of Section 5-1401 of the New York General Obligations Law have been met, we express no opinion as to whether the choice of law provisions in the Transaction Documents, as applicable, would raise any issues under the U.S. constitution or in equity that would affect whether a New York court would enforce the choice of New York law to govern the respective Transaction Documents.

F.We express no opinion as to (i) the compliance of the transactions contemplated by the Transaction Documents with any regulations or governmental requirements applicable to any party other than the Company, (ii) the financial condition or solvency of the Company, (iii) the ability (financial or otherwise) of the Company or any other party to meet their respective obligations under the Transaction Documents, (iv) the compliance of the Transaction Documents or the transactions contemplated thereby with, or the effect of any of the foregoing with respect to, the anti-fraud provisions of the Federal and state securities laws, rules and regulations, (v) the conformity of the Transaction Documents to any term sheet or commitment letter, (vi) any provi sion of any Transaction Document if and to the extent that such provision (a) is a liquidated damages provision, to the extent that such provision constitutes a penalty or forfeiture or is

(1) To be removed in final opinion.

4

otherwise contrary to public policy or (b) provides a remedy for breach that may be deemed to be disproportionate to actual damages or may be deemed to be a penalty and (vii) the enforceability of any provisions contained in the Transaction Documents purporting to indemnify a person for gross negligence, willful misconduct or strict liability; prohibit oral amendments to or waivers of provisions of the Transaction Documents or otherwise limit the effect of a course of dealing between the parties thereto; waive objections based on venue or inconvenient forum as to any court; or otherwise restrict, vary or waive access to legal or equitable remedies or defenses (including, without limitations, rights to notice of and hearing on matters relating to service of process).

G.We have assumed that (i) the Tengelmann Parties, on the one hand, and the Yucaipa Parties, on the other hand (each as defined in the Articles Supplementary), are not acting, and upon and after the execution and delivery of the Transaction Documents, will not act as a “group” as defined under Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended, (ii) to the extent that dividends on the Convertible Preferred Stock are paid in cash, as contemplated by Section 4 of the Articles Supplementary, that such dividends are paid in compliance with Section 6.08(a)(i) of the Amended and Restated Credit Agreement and, to the extent such dividends are paid in shares of additional Convertible Preferred Stock , that such payment does not result in the Yucaipa Parties beneficially owning more than a majority of the voting power represented by the Company’s outstanding capital stock entitled to vote in the election of directors, (iii) that the directors contemplated to be elected or appointed pursuant to Section 1 5 of the Articles Supplementary will constitute Continuing Directors as defined in the Amended and Restated Credit Agreement and in the Indenture pursuant to which the Senior Secured Notes are issued, (iv) that any transactions between the Company or its Subsidiaries, on the one hand, and any of the Yucaipa Parties or the Tengelmann Parties, on the other hand (other than the issuance of the Convertible Preferred Stock and the payment of fees in connection therewith) are at prices and on terms and conditions that are not less favorable to the Company than those that could be obtained on an arm’s length basis from unrelated third parties, (v) the adoption of the amendments to the Company’s By laws as contemplated by the Transaction Documents are not materially adverse to the lenders under the Amended and Restated Credit Agreement and (vi) the terms of the Indenture pursuant to which the Senior Secured Notes are issued are not materially different than the terms of the Description of Notes contained in the preliminary offering memorandum for the Senior Secured Notes.(1)

H.We have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed in this letter. We have assumed that the meanings specified in contracts having a governing law other

5

than an Included Law would be what attorneys would customarily understand them to mean if the governing law was the laws of the State of New York.

I. This letter is solely for your benefit, and no other Persons shall be entitled to rely upon this letter. Without our prior written consent, this opinion letter may not be quoted in whole or in part or otherwise referred to in any document and may not be furnished or otherwise disclosed to or used by any other Person, except for (i) delivery of copies hereof to counsel for the addressees hereof, (ii) inclusion of copies hereof in a closing file and (iii) use hereof in any legal proceeding arising out of the transactions contemplated by the Transaction Documents filed by an addressee hereof against this law firm or the Company or in which any addressee hereof is a defendant.

Very truly yours,

AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.

(1) To be removed in final opinion.

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EXHIBIT A-1

ADDRESSEES

YUCAIPA CORPORATE INITIATIVES FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUN]) I, LP

YUCAIPA AMERICAN ALLIANCE FUN]) II, LP

YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUN]) II, LP

YUCAIPA AMERICAN ALLIANCE FUN]) II, LLC, as Investor’s Representative

EXHIBIT A-2

ADDRESSEES

TENGELMANN WARENHANDELS-GESELLSCHAFT KG

EXHIBIT B

TRANSACTION DOCUMENTS

(a)The Agreements and the disclosure schedules related thereto.

(b)Amended and Restated Yucaipa Stockholder Agreement.

(c)Amended and Restated Tengelmann Stockholder Agreement.

EXHIBIT C

CONSTITUENT DOCUMENTS

(a)Articles of Amendment and Restatement of the Articles of Incorporation of the Company signed by the Company on July 1, 2008, as supplemented by the Articles Supplementary and as further amended (the “Charter”), certified on [·], 2009 by the [Secretary of State of the State of Maryland].

(b)By-Laws of the Company (the “Bylaws”) attached as Exhibit 3.2 to the Company’s Report on Form 10-K/A filed with the Securities and Exchange Commission on July     , 2009 as amended on                 , 2009.

(c)Convertible Preferred Articles Supplementary (after giving effect to the filing of the Convertible Preferred Articles Supplementary with the State Department of Assessments and Taxation of the State of Maryland (the “Articles Supplementary”)).

EXHIBIT D

REVIEWED DOCUMENTS

·Indenture, dated as of January 1, 1991, by and between The Great Atlantic & Pacific Tea Company, Inc. and Manufacturers Hanover Trust Company, trustee

·Form of Global Security (attached as Exhibit I to the Authorizing Resolutions adopted by the Pricing Committee of the Board of Directors of The Great Atlantic & Pacific Tea Company, Inc. on August 4, 1999 relating to $200,000,000 Aggregate Principal Amount of 9 3/8% Senior Quarterly Interest Bonds due 2039)

·Second Supplemental Indenture, dated as of December 20, 2001, by and between The Great Atlantic & Pacific Tea Company, Inc. and JPMorgan Chase Bank, trustee, relating to the 9 1/8% Senior Notes due 2011

·Fourth Supplemental Indenture, dated as of August 23, 2005, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company (successor to JPMorgan Chase Bank), trustee, relating to the 9 1/8% Senior Notes due 2011

·Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee

·First Supplemental Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee, relating to the 5.125% Convertible Senior Notes Due 2011

·Second Supplemental Indenture, dated as of December 18, 2007, by and between The Great Atlantic & Pacific Tea Company, Inc. and Wilmington Trust Company, trustee, relating to the 6.75% Convertible Senior Notes Due 2012

·[The Indenture pursuant to which the Senior Secured Notes are to be issued]

Exhibit D

Opinion of Maryland Counsel

[             ], 2009

Yucaipa American Alliance Fund II, LP

Yucaipa American Alliance (Parallel) Fund II, LP

Yucaipa American Alliance Fund II, LLC, as Investors’ Representative

9130 W. Sunset Boulevard

Los Angeles, California 90069

who are collectively referred to herein as the “Yucaipa Addressees”;

and

Tengelmann Warenhandels-Gesellschaft KG

Wissollstrasse 5-43

D-45478 Mülheim an der Ruhr

Germany

Attention:              Mr. Christian Haub

Dr. Frank Hartmann

who is referred to herein as the “Tengelmann Addressee”.

Re:The Great Atlantic & Pacific Tea Company, Inc.

Issuance of 8% Cumulative Convertible Preferred Series A-Y and Series A-T Stock

Ladies and Gentlemen:

We have acted as special Maryland counsel to The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), in connection with the issuance of (a) 115,000 shares of Series A-Y Convertible Preferred Stock due July [J, 2016 (the “Series A-Y Issuance”) pursuant to that certain Investment Agreement dated July [j, 2009 by and among the Company and the Yucaipa Addressees (the “Yucaipa Agreement”) and (b) 60,000 shares of Series A-T Convertible Preferred Stock due July [J, 2016 (the “Series A-T Issuance”, and together with the Series A-Y Issuance, collectively, the “Transaction”) by the Company pursuant to that certain Investment Agreement dated July [J, 2009 by and among the Company and the Tengelmann Addressee (the  7;Tengelmann Agreement”, and together with the Yucaipa Agreement, collectively, the “Agreements”). This opinion letter is provided pursuant to Section 6.02(d) of the Agreements. Each capitalized term used and not defined herein shall have the meanings provided in the Agreements.

Documents Reviewed

In connection herewith, we have examined, among other things, originals or copies, certified or otherwise identified to our satisfaction, of the following:

(a)the Agreements and the Company Disclosure Letters provided in relation thereto;

(b)that certain Amended and Restated Yucaipa Stockholder Agreement dated as of [   ], 2009, by and among the Company, the Yucaipa Addressees and the other parties thereto (the “Yucaipa Stockholder Agreement”);

(c)that certain Amended and Restated Tengelmann Stockholder Agreement dated as of [   ], 2009, by and among the Company, the Tengelmann Addressee and the other parties thereto (the “Tengelmann Stockholder Agreement” and together with the Agreements and the Yucaipa Stockholder Agreement, collectively, the “Transaction Documents”);

(d)the Articles of Amendment and Restatement of the Articles of Incorporation of the Company as filed with, and accepted for record by, the State Department of Assessments and Taxation of Maryland on July 1, 2008 (the “Charter”);

(e)the By-Laws of the Company, as amended to date and including the Company By-Laws Amendment (the “By-Laws” and, together with the Charter, collectively, the “Company Organizational Documents”) certified by an officer of the Company in the Company Certificate;

(f)Articles Supplementary designating 8% Cumulative Convertible Preferred Stock, Series A-T, of the Company, 8% Cumulative Convertible Preferred Stock, Series A-Y, of the Company, 8% Cumulative Convertible Preferred Stock, Series B-T, of the Company, and 8% Cumulative Convertible Preferred Stock, Series B-Y, of the Company (filed with, and accepted for record by, the State Department of Assessments and Taxation of Maryland, the “Articles Supplementary”);

(g)those certain resolutions by the Board of Directors of the Company and by the Committee of Independent Directors, the Audit & Finance Committee, the Governance Committee and the Human Resources and Compensation Committee of the Board of Directors relating to the transactions contemplated by the Agreements (collectively, the “Authorizing Resolutions”);

(h)a Certificate of Status for the Company issued by the State Department of Assessments and Taxation of Maryland dated [   ], 2009 (the “Certificate of Status”);

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(i)a certificate of officer(s) of the Company, a copy of which is attached hereto as Exhibit A, certifying as to certain factual matters (the “Company Certificate”);

(j)a form of share certificate for the Shares, attached as an exhibit to the Articles Supplementary (the “Form Stock Certificate”);

(k)a Consent and Waiver to Stockholder Agreement dated [   ], 2009 (the “Tengelmann Waiver”) by the Tengelmann Addressee to the Company waiving certain of its rights under that certain Stockholder Agreement dated March 4, 2007 by and between the Company and Tengelmann Addressee and the By-Laws of the Company in effect as of January 17, 2008; and

(l)such other certificates, records and copies of executed originals, final forms and draft forms of documents as we deemed necessary for the purpose of this opinion.

As used herein, “Maryland General Corporation Law” shall mean Title 1 through Title 3 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended; and “Stock” shall mean the Shares issued in, and the Underlying Securities issued pursuant to, the Transaction.

Assumptions

For all purposes of the opinions expressed herein, we have assumed, without independent investigation, the following:

(a)Factual Matters. All certifications, representations, warranties and assurances set forth in (i) the Company Certificate and other certificates of the Company or authorized representatives thereof, (ii) the Transaction Documents, and (iii) the certificates and assurances from public officials, are in all cases true, complete and accurate with respect to the matters set forth therein;

(b)Contrary Knowledge of Addressee. No addressee of this opinion letter has any actual knowledge that any of our factual assumptions or opinions are inaccurate;

(c)Signatures. The signatures of individuals signing the Transaction Documents and the documents contemplated thereby are genuine and (other than individuals signing on behalf of the Company) authorized;

(d)Certificates. Each individual executing a certificate is authorized to do so and has knowledge of all matters stated therein and each such certificate is accurate and complete;

(e)Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete and accurate, all documents submitted to us as copies conform

3

to authentic original documents and all documents submitted as form, precedent or specimen documents are complete and accurate in all respects to the actual documents they are purported to be the form, precedent or specimen of and that are actually executed and delivered by the parties;

(f)Capacity of Certain Parties. With the exception of the Company, all parties to the Transaction Documents have the capacity and full power and authority to execute, deliver and perform the Transaction Documents and the documents required or permitted to be delivered and performed thereunder;

(g)Documents Binding on Certain Parties. With the exception of the Company, the Transaction Documents and the documents contemplated thereby have been duly authorized by all necessary corporate or other action on the part of the parties thereto and have been duly executed and delivered by such parties. The Agreements and, except with respect to the Company, the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement, are legal, valid and binding obligations of the parties thereto enforceable against the parties thereto in accordance with their terms;

(h)Noncontravention. With the exception of the Company, neither the execution and delivery of the Transaction Documents and the documents contemplated thereby by any party thereto, nor the compliance by any party thereto with the terms and provisions thereof will conflict with or result in any breach of (i) any law or regulation of any jurisdiction, or (ii) any order, writ, injunction or decree of any court or governmental instrumentality or agency;

(i)Consents for Certain Parties. All necessary consents, authorizations, approvals, permits or certificates (governmental and otherwise) which are required as a condition to the execution and delivery of the Transaction Documents by the parties thereto and to the consummation by such parties of the transactions contemplated thereby (other than any such consents, authorizations, approvals, permits or certificates required under Maryland law as to the Company) have been obtained;

(j)Accurate Description of Parties’ Understanding. The Transaction Documents accurately describe and contain the mutual understanding of the parties, and there are no oral or written statements or agreements that modify, amend or vary, or purport to modify, amend or vary any of the terms thereof;

(k)Completion of Transaction Documents. All blanks in the Transaction Documents and other documents reviewed by us have been completed and all exhibits and schedules have been attached thereto;

(l)  Approvals; Filing of Documents. Prior to the conversion of any of the Stock (except in accordance with the limitations in clauses (a) and (b) of Section 7 of the Articles Supplementary) or declaration of a dividend payable in the form of securities of the Company, in

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whole or in part (except in each case, to the extent that there is sufficient Stock available under the Charter to effect such conversion or dividend), the (i) Charter will have been amended to authorize an amount of Common Stock sufficient to satisfy the Company’s obligations under the Transaction Documents and the Articles Supplementary (the “Charter Amendment”), and such amendment will have been approved by all necessary stockholder action and filed with, and accepted of record by, the State Department of Assessments and Taxation of Maryland, and (ii) Conversion Stockholder Approval will have been obtained; and

(m) Miscellaneous. (i) Consideration for the issuance of all securities of the Company since March 18, 1994 has been or will be received prior to the issuance of such securities in an amount not less than the amount set forth in the documents governing the purchase and sale of such issuances, including without limitation any resolutions of the Board of Directors of the Company, the Transaction Documents and the Authorizing Resolutions, and consists in whole or in part of money, tangible or intangible property, labor or services actually performed for the Company, a promissory note or other obligation for future payment in money, or contracts for labor or services to be performed, (ii) the Stock will be issued and sold in compliance with all applicable federal and state securities laws, (iii) the Company has taken action to evidence ownership of the all securitie s issued by the Company since March 18, 1994 and the Stock in accordance with the Maryland General Corporation Law, (iv) the Company does not engage or propose to engage in any industry, business or activity, or own any property or asset, that causes or would cause it to be subject to special local, state or federal regulation not applicable to business corporations generally, (v) the Tengelmann Waiver constitutes a valid waiver of any pre-emptive or similar rights of Tengelmann in or to securities of the Company, and (vi) any shares issued pursuant to the Convertible Preferred Stock PIK Dividend Provision (as defined in the Articles Supplementary) will only be issued following the due authorization and declaration of a dividend by the Board of Directors of the Company in accordance with the Maryland General Corporation Law.

Opinions

Based on and subject to the foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that:

1.Based solely upon the Certificate of Status, the Company is validly existing as a corporation in good standing under the laws of the State of Maryland, the jurisdiction of its incorporation, as of the date set forth in the Certificate of Status.

2.The Company has the corporate power and authority to enter into, execute, deliver and perform its obligations under each of the Transaction Documents, to validly issue the Stock, to execute and file the Articles Supplementary, and to own, lease and operate its properties and assets, and to carry on its business as described in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on May 12, 2009. The Articles Supplementary have been duly authorized by all necessary corporate action on the part of the Company, have been dul y executed and filed with, and accepted for record by, the State

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Department of Assessments and Taxation of Maryland, and are effective under the Maryland General Corporation Law.

3.The authorized capital stock of the Company consists of 163,000,000 shares of which (a) 160,000,000 shares are common stock, par value $1.00 per share and (b) 3,000,000 shares are preferred stock, without par value, of which (i) 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock Series A-T, 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock Series A-Y, 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock Series B-T and 350,000 shares have been classified and designated as 8% Cumulative Convertible Preferred Stock, Series B-Y. All shares of Common Stock issued since March 18, 1994 that are currently outstanding have been duly authorized and validly issued and are fully paid and non-assessable.

4.Each of the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its respective terms.

5.The Investor Shares described in the Yucaipa Agreement (consisting of 115,000 shares of Cumulative Convertible Preferred Stock, Series A-Y) have been duly authorized for issuance and sale by the Company pursuant to the Yucaipa Agreement by all necessary corporate action, and when issued and delivered by the Company in exchange for payment of the consideration therefor in accordance with the Yucaipa Agreement, will be validly issued, fully paid and non-assessable, and the issuance and sale of such Shares to the Investors (as defined in the Yucaipa Agreement) is not, and will not, be subject to any pre-emptive or similar rights under the Maryland General Corporation Law or the Charter or By-Laws.

6.The Investor Shares described in the Tengelmann Agreement (consisting of 60,000 shares of Cumulative Convertible Preferred Stock, Series A-T) have been duly authorized for issuance and sale by the Company pursuant to the Tengelmann Agreement by all necessary corporate action, and when issued and delivered by the Company in exchange for payment of the consideration therefor in accordance with the Tengelmann Agreement, will be validly issued, fully paid and non-assessable, and the issuance and sale of such Shares to the Investors (as defined in the Tengelmann Agreement) is not, and will not, be subject to any preemptive or similar rights under the Maryland General Corporation Law or the Charter or By-Laws.

7. The Underlying Securities have been duly authorized and reserved for issuance by all necessary corporate action, and when issued and delivered by the Company upon conversion of the Shares in accordance with and subject to the terms and conditions set forth in the Articles Supplementary, the Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any pre-emptive or similar rights arising by operation of the Maryland General Corporation Law or the Charter or By-Laws.

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8.The Shares issuable pursuant to the Convertible Preferred Stock PIK Dividend Provision of the Articles Supplementary (the “Preferred Dividend Underlying Securities”) have been duly and validly authorized, and when issued and delivered by the Company as dividends on the Shares upon the invocation by the Company of the Convertible Preferred Stock PIK Dividend Provision (as defined in the Articles Supplementary) and following due authorization and declaration of a dividend by the Board of Directors in accordance with the Maryland General Corporation Law, such Preferred Dividend Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights arising by operation of the Maryland General Corporation Law or the Charter or By-Laws.

9.The execution and delivery by the Company of each of the Transaction Documents has been duly authorized by all requisite corporate action by the Company. The Company has duly executed and, to our knowledge, delivered each of the Transaction Documents. The performance of the Transaction Documents has been duly authorized by all necessary corporate action of the Company.

10. The execution and delivery of the Transaction Documents by the Company, the issuance and sale of the Shares by the Company to the Investors pursuant to the Investment Agreements and the performance of the obligations of the Company under the Transaction Documents do not:

(a)violate the Company’s Organizational Documents;

(b)violate or contravene any provision of the Maryland General Corporation Law or any other Applicable Law or, to our knowledge, any Maryland court order applicable to the Company; or

(c) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority, under any Maryland statute, rule or regulation applicable to the Company on or prior to the date hereof that have not been obtained or made.

As used herein, “Applicable Laws” means those laws, rules, regulations or governmental authorities of the State of Maryland (excluding those of counties, cities, and other municipalities, and any local governmental agencies) that we, in the exercise of customary professional diligence, would reasonably recognize as being applicable to the Company and the transactions contemplated by the Transaction Documents.

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11.The Form Stock Certificate is consistent with the requirements for stock certificates set forth in the Maryland General Corporation Law.

12.The Company By-Laws Amendment has been duly authorized and approved by all necessary corporate action of the Company, and is effective as an amendment to the Company’s By-Laws in accordance with the Maryland General Corporation Law.

13. The Series A Convertible Preferred Stock of each series and the Series B Convertible Preferred Stock of each series have the designations, voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption, restrictions and other terms set forth in the Articles Supplementary, and such voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption, restrictions and other terms do not conflict with or violate any provision of the Maryland General Corporation Law or the Company Organizational Documents, as supplemented by such Articles Supplementary.

Exclusions

We express no opinion with respect to the following matters:

(a)Indemnification and Change of Control. Any agreement of the Company in the Transaction Documents or the Articles Supplementary relating to indemnification, contribution or exculpation from costs, expenses or other liabilities or to changes in the organizational control or ownership of the Company, to the extent that any such agreement is contrary to public policy or applicable law;

(b)Jurisdiction; Venue, etc. The enforceability in any court of any agreement of Company (i) to submit to the jurisdiction of any specific federal or state court, (ii) to waive (A) any objection to the laying of the venue, (B) the defense of forum non conveniens in any action or proceeding or (C) trial by jury, (iii) to effect service of process in any particular manner, (iv) to establish evidentiary standards, or (v) regarding the choice of law governing the Transactio n Documents;

(c) Certain Laws. Federal laws and regulations, securities and “Blue Sky” laws or regulations, banking laws and regulations, pension and employee benefit laws and regulations, environmental laws and regulations, tax laws and regulations (except as otherwise expressly provided in this opinion letter), health and occupational safety laws and regulations, building code, zoning, subdivision and other laws and regulations governing the development, use and occupancy of real property, antitrust and unfair competition laws and regulations, the Assignment of Claims Act and the effect of any of the foregoing on any of the opinions expressed;

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(d)Local Ordinances. The ordinances, statutes, administrative decisions, orders, rules and regulations of any municipality, county, special district or other political subdivision of the State of Maryland;

(e)Incorporated Documents. Any document or instrument other than the Transaction Documents, notwithstanding it being referenced in any of the Transaction Documents, or as to the interplay between the Transaction Documents and any such other document or instrument; and

(f)Issuance of Stock in Excess of Securities Available under the Charter. The conversion, issuance or reservation of any Stock to the extent that there are insufficient shares of common stock or preferred stock of the Company available for issuance or reservation under the Charter at the time of such conversion or issuance.

(g)Restricted Distributions. Any distribution (as defined in Section 2-301 of the Maryland General Corporation Law) in violation of the limitations provided in Section 2-311 of the Maryland General Corporation Law.

Qualifications and Limitations

The opinions set forth above are subject to the following qualifications and limitations:

(a)Applicable Law. Our opinions are limited to the laws of the State of Maryland, and we do not express any opinion concerning any other law;

(b)Bankruptcy. Our opinions are subject to the effect of any applicable bankruptcy, insolvency (including, without limitation, laws relating to preferences, fraudulent transfers or conveyances and equitable subordination), reorganization, moratorium and other similar laws affecting creditors’ rights generally;

(c)Equitable Principles. Our opinions are subject to the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. In applying such principles, a court, among other things, might limit the availability of specific equitable remedies (such as injunctive relief, the remedy of specific performance and/or the appointment of a receiver) or might not allow a part y to exercise remedies upon the occurrence of a default deemed immaterial;

(d)Corporate Power, Noncontravention and Government Approvals. Our opinions expressed in paragraphs 2 and 10 are limited to (i) our actual knowledge, if any, of any of the Company’s business activities and properties based solely on the Company Certificate in respect of such matters without independent investigation or verification on our part and (ii) our

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review of only those laws and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents;

(e)Knowledge. Whenever our opinions or qualifications are stated to be “to our knowledge” or “known to us” (or words of similar import), it means the actual knowledge of the particular McGuireWoods LLP attorneys who have represented the Company in connection with the Yucaipa Stockholder Agreement and the Tengelmann Stockholder Agreement. Except as expressly set forth herein, we have not undertaken any independent investigation (including, without limitation, conducting any review, search or investigation of any public files or records or dockets or any review of our files) to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn from our reliance on the same in connection with the preparation and delivery of this opinion letter;

(f)Material Changes to Terms. Provisions in the Transaction Documents which provide that any obligations of the Company thereunder will not be affected by amendment or waiver of the provisions contained in the Transaction Documents might not be enforceable under circumstances in which such action, failure to act, amendment or waiver so materially changes the essential terms of the obligations that, in effect, a new contract has arisen between the Company and any party to the Transactions Document s; and

(g)Mathematical Calculations. We have made no independent verification of any of the numbers, schedules, formulae or calculations in the Transaction Documents or the Articles Supplementary, and we render no opinion with regard to the accuracy, validity or enforceability of any of them.

(h)Reliance on Certain Items. Our opinion in paragraph 9 that the Company has duly executed each of the Transaction Documents is based solely on our review of the Company Certificate, the Authorizing Resolutions and electronic copies of the executed Transaction Documents.

Miscellaneous

The foregoing opinions are being furnished to the addressees for the purpose referred to in the first paragraph of this opinion letter, and this opinion letter is not to be furnished to any other person or entity or used or relied upon for any other purpose without our prior written consent. The opinions are based upon currently existing facts and circumstances and Maryland statutes, rules and regulations and on Maryland judicial decisions and are rendered and being delivered to you as of the date hereof and we disclaim any obligation to advise you of any change in any of the foregoing sources of law or subsequent developments in law or changes in facts or circumstances which might affect any matters or opinions set forth herein. The headings and titles to paragraphs of sections of this opinion letter are for convenience of reference only and are not construed to have any effect or meanin g with respect to such paragraphs or sections.

Very truly yours,

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Exhibit A

The Great Atlantic & Pacific Tea Company, Inc.

Company Certificate

Effective as of [   ], 2009

Reference is made to the opinion letter of McGuireWoods LLP (the “Opinion Letter”) delivered in connection with those certain Investment Agreements, each dated July [   ], 2009 (collectively, the “Investment Agreements”) among (1) The Great Atlantic & Pacific Tea Company, Inc. (the “Company”) and the Yucaipa Addressees (as defined in the Opinion Letter) relating to the issuance by the Company of 115,000 shares of Series A-Y Convertible Preferred Stock due July [   ], 2016, and (2) the Company and the Tengelmann Addressee (as defined in the Opinion Letter) relating to the issuance by the Company of 60,000 shares of Series A-T Convertible Preferred Stock due July [   ], 2016. Capitalized terms used and not defined in this Certificate have the meanings provided in the Opinion Letter.

The undersigned officer of the Company certifies, in connection with the execution, delivery and performance by the Company of the Transaction Documents, the consummation of the transactions contemplated by the Transaction Documents and issuance by McGuireWoods LLP of the Opinion Letter, as follows:

1.Attached hereto as Exhibit A is a true and correct copy of the Charter of the Company as presently in effect on the date of the Opinion Letter and on file with the State Department of Assessments and Taxation of Maryland.

2.Attached hereto as Exhibit B is a true and correct copy of the Amended and Restated By-Laws of the Company as presently in effect on the date of the Opinion Letter.

3.Attached hereto as Exhibit C are true and correct copies of all of the resolutions adopted by the Board of Directors, or a properly appointed committee of the Board of Directors of the Company, with respect to the transactions contemplated by the Transaction Documents; the resolutions were duly adopted and constitute all resolutions and actions of the Board of Directors with respect to the transactions described in the Transaction Documents and, except as indicated in such resolutions, such resolutions have not been amended, modified, annulled or revoked, and are in full force and effect on the date of the Opinion Letter.

4.Each person who, as an officer of the Company, signed any of (a) the Transaction Documents, and (b) any other document delivered in connection therewith, including without limitation any stock certificates, was duly elected or appointed, qualified and acting as such officer at the respective times of the signing and delivery thereof and was duly authorized to execute such documents on behalf of the Company, and the signature of each person appearing below and in such document is such officer’s genuine signature.

Name Office Signature

5.No judicial decree of dissolution has been entered with respect to the Company and the Company has not been voluntarily dissolved, merged or transferred out of existence at any point.

6.The Company has not been organized under the laws of any state other than the State of Maryland.

7.The conduct of the Company’s business is limited to those activities listed in the Company’s Charter and By-Laws.

8.Except as follows, the Company has not issued any shares of Common Stock since March 18, 1994: [Insert description of Pathmark merger and related issuances]

9.The Company does not engage, nor does it propose to engage, in any industry or business or activity, or own any property or asset, that causes or would cause it to be subject to special local, state or federal regulation not applicable to business corporations generally and the Company is not subject to any order, writ, injunction or decree of any court or governmental instrumentality or agency.

10.      No shares of preferred stock of the Company other than the shares classified and designated in the Articles Supplementary, have been classified or reclassified, or reserved or authorized for issuance, and other than the Shares issued to the Investors, no shares of preferred stock of the Company are issued and outstanding.

11.To my knowledge, after due inquiry, each of the factual assumptions set forth in the Opinion Letter is true, correct and accurate.

12.      All representations and warranties of the Company contained in the Transaction Documents are true and correct as of the date hereof.

13. The Company is not subject to any court orders or judgments, and is not party to any agreements that would prohibit the Company from owning, leasing and operating its properties and assets, and carrying on its business as described in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on May 12, 2009.

14. No person or entity has any pre-emptive or similar rights concerning the securities of the Company other than the Tengelmann Addressee pursuant to that certain Stockholder Agreement dated [              ] by and between the Company and Tengelmann Addressee.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

IN WITNESS WHEREOF, I have hereunto set my hand as of this [  ] day of [  ], 2009.

By:

Name: Allan Richards

Title: Senior Vice President, Human Resources, Labor Relations, Legal Services & Secretary

Schedule 1

Wire Information

EX-10.3

Exhibit 10.3

AGREEMENT OF SALE AND LEASEBACK

THIS AGREEMENT OF SALE AND LEASEBACK (this “Agreement”) made as of November 4, 2010 (the “Effective Date”), by and between THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (“A&P”), PATHMARK STORES, INC., a Delaware corporation (“Pathmark”), PLAINBRIDGE LLC, a Delaware limited liability company (“Plainbridge”), UPPER DARBY STUART, LLC, a Delaware limited liability company (“UP STUART”), and LANCASTER PIKE STUART, LLC, a Delaware limited liability company (“LP STUART”), each having an address at Two Paragon Drive, Montvale, New Jersey 07645 (collectively referred to herein as “Seller”), and WE APP I LLC, a Delaware limited liability company, having an address at c/o Winstanley Enterprises LLC, 150 Baker Avenue Extension, Suite 303, Concord, Massachusetts 07142 (“Purchaser 8;).

W I T N E S S E T H:

WHEREAS, subject to the terms and conditions set forth below, Seller and Purchaser desire to effectuate a “sale-leaseback” transaction;

WHEREAS, pursuant to the transaction, Seller agrees to sell, and Purchaser agrees to purchase the “Properties” (defined below); and

WHEREAS, simultaneous with the sale of the Properties, Seller, as “Tenant,” and Purchaser, as “Landlord” will enter into a lease for all or a portion of each of the Properties, all on the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1 — DEFINITIONS

1.1.Definitions.

As used herein the following terms shall have the following meanings:

“A&P” is defined in the Preamble to this Agreement.

“Applicable Law” means any laws, statutes, ordinances, codes, regulations, rules, orders, or other requirements of any local, state or federal authority or any other governmental entity or agency having jurisdiction over the Properties or any part thereof, including, without limitation, any of the foregoing affecting zoning, subdivision, building, health, traffic, environmental, Hazardous Materials or flood control.

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“Business Day” means a day, other than Saturday or Sunday, on which commercial banks in the State of New Jersey are open for the general transaction of business.

“Closing” means (a) the transfer of the Properties from Seller to Purchaser; (b) the Seller and Purchaser’s execution and delivery of the Supermarket Leases, (c) the payment of the Purchase Price by Purchaser to Seller, and (d) the delivery and performance of the other items and obligations to be delivered or performed hereunder at the time the Properties are transferred and the Purchase Price is paid.

“Closing Date” means November 8, 2010, subject to extension only as expressly provided in this Agreement.

“Deeds” is defined in Section 3.4(a).

“Deposit” means the sum of Fourteen Million Dollars ($14,000,000.00), and any interest or other earnings thereon.

“Escrow Agent” means the national office of Chicago Title Insurance Company located at 265 Franklin Street, Boston, Massachusetts 02110.

“Environmental Report” means those certain Phase I Environmental Reports on the Properties prepared by Whitestone Associates set forth on Exhibit I.

“Environmental Law” means any Applicable Law and binding administrative or judicial interpretations thereof, relating directly to the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, release or disposal of Hazardous Materials.

“Estoppel Requirement” is defined in Section 11.1(a).

“Existing Leases Assignment” is defined in Section 3.4(d).

“Existing Leases” means the existing leases on the Shopping Center Property set forth on the Rent Roll. The Ground Leases shall not be considered Existing Leases. At Closing, Purchaser shall purchase the Properties subject to the Existing Leases.

“Existing Tenant Estoppels” means the estoppel certificates from the Existing Tenants required pursuant to Section 11(a).

“Existing Tenants” means the tenants under the Existing Leases.

“Gas Station Lease” means that certain lease between Pathmark and the Gas Station Tenant dated October 24, 1975 for certain space on the Lawnside Property.

“Gas Station Tenant” means Leemilt’s Petroleum.

“Ground Landlord Estoppels” is defined in Section 11.1(b).

“Ground Landlords” means the landlords under the Ground Leases.

“Ground Lease Assignments” is defined in Section 3.4(e).

“Ground Leases” means the ground leases and basement lease applicable to the Properties set forth on Exhibit C-2 attached hereto. At Closing, Seller shall assign and Purchaser shall assume the tenant’s interest under each of the Ground Leases.

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“Hazardous Materials” means all materials (including without limitation wastes, pollutants and contaminants) in such quantity or concentration as to be subject to regulation pursuant to Environmental Law, including oils, petroleum, and petroleum products.

“HFF” is defined in Section 12.2(a).

“Improvements” means all buildings and other improvements located on the Parcels and all fixtures attached or affixed, actually or constructively, to the Parcels.

“Intangible Property” means all appurtenant easements, rights, and privileges related to the Parcels and the Improvements (including, without limitation, all approvals and development rights).

“Knowledge” means the actual knowledge of the present senior employees of the Corporate Real Estate Department of the Seller, without any independent inquiry other than the reading of this Agreement.

“Lawnside Property” means the Property located at 130 White Horse Pike, Lawnside, New Jersey.

“Material Adverse Effect” means an effect that is materially adverse to the physical or financial condition of the Properties, but shall exclude any effect resulting from (i) any occurrence or condition generally affecting the retail grocery industry; (ii) Acts of God and other force majeure events; (iii) the public announcement of this Agreement or the transactions contemplated hereby; and (iv) the acts or omissions of Purchaser or any of its Affiliates.

“Nemeroff” is defined in Section 12.2(a).

“Parcels” means the six (6) parcels of land described on Exhibits A-1 through A-6 attached hereto (including, without limitation, all air rights and subsurface rights).

“Partial Closing” means a Closing permitted to Purchaser under the provisions of this Agreement with respect to less than all of the Properties. In the case of a Partial Closing all of the provisions of this Agreement shall apply with respect to the Properties subject to such Partial Closing and the Purchase Price in connection with such Partial Closing shall be calculated based on the Purchase Price allocated to the Properties subject to such Partial Closing as set forth on Exhibit A (and the Deposit shall be applied to such Properties on a prorated basis based on such allocation). If the matters affecting the Property or Properties which have been removed from an initial Partial Closing (or Partial Closings) are subsequently satisfied such that pursuant to this Agreement a Partial Closing is to occur with respect to such Property or Prop erties, then all provisions of this Agreement shall apply with respect to such Property or Properties at the subsequent Partial Closing and the Purchase Price in connection with such subsequent Partial Closing shall be calculated based on the Purchase Price allocated to the Property or Properties subject to such subsequent Partial Closing as set forth on Exhibit A.

“Permits” means all licenses permits, consents, authorizations, and approvals with respect to the use, occupancy, possession and operation of the Parcels and Improvements now or hereafter issued, approved or granted by any governmental entity in connection with the Parcels and the Improvements.

“Permitted Encumbrances” is defined in Section 2.1.

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“Properties” means all of the Parcels, together with all of Seller’s right, title or interest in the Improvements, Intangible Properties and the Permits related to the Parcels, the Ground Leases and the Existing Leases and any modifications or new leases made in accordance with the terms of this Agreement. As the context so requires in this Agreement, a “Property” shall mean any one of the six (6) Parcels and any Improvements, Intangible Properties, Permits, Ground Leases and, with respect to the Shopping Center Property, the Existing Leases related thereto.

“Purchase Price” means the sum of Eighty Nine Million Eight Hundred Thirty Thousand Fifteen Dollars ($89,830,015.00). The Purchase Price shall be allocated among the Properties in accordance with Exhibit A and is subject to adjustment pursuant to the provisions of this Agreement.

“Purchaser” is defined in the Preamble to this Agreement.

“Rent Roll” means the rent roll regarding the Existing Leases set forth on Exhibit C-1  attached hereto.

“Seller” is defined in the Preamble to this Agreement. “Settlement Statement” is defined in Section 3.3.

“Shopping Center Property” means the Property located at 9210 Atlantic Avenue, Queens (Ozone Park), New York.

“Stand Alone Properties” means the Properties other than the Shopping Center Property.

“Supermarket Leases” means the six (6) supermarket leases to be entered into at Closing between Seller, as “Tenant”, and Purchaser, as “Landlord”. For the Shopping Center Property, the Supermarket Lease for that Property will have a Demised Premises consisting of the current supermarket space on the Property; for the Stand Alone Properties, the Demised Premises will be the entire Parcel. The Supermarket Leases will be substantially in the forms attached hereto as Exhibit B-1 through B-6 (including the guarantees attached thereto) and as described in Section 9.1 below. Purchaser acknowledges and agrees that Seller may designate either Pathmark or A&P to serve as the tenants under the Supermarket Leases so long as A&P is either the tenant or guarantor under all of the Supermarket Leases.

“Surveys” means the ALTA/ACSM surveys of the Properties listed on the attached Exhibit C-3.

“Title Conditions” means the “Schedule B” conditions and requirements and other title matters to be satisfied by Seller at or prior to the Closing as set forth on the attached Exhibit C4.

“Unlimited Representations” means the representations and warranties of Seller set forth in Sections 7.1(g) and 7.1(q).

“Utility Deposits” is defined in Section 3.3(c).

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ARTICLE 2 - SALE OF THE PROPERTY.

2.1.Properties to be Sold and Conveyed.

Subject to the terms, conditions and covenants of this Agreement, Seller agrees to sell, convey and transfer good and marketable fee title (except with respect to the portions of the Properties subject to the Ground Leases, for which leasehold title shall be conveyed) and Purchaser agrees to purchase and accept all of Seller’s right, title and interest in and to the Properties. The Properties shall be sold subject only to (a) such easements, covenants, restrictions, agreements, encumbrances and other matters of title of as enumerated on Exhibit C5 attached hereto, (b) all present and future zoning and other governmental laws and regulations, (c) all facts revealed by the Surveys, and (d) the Existing Leases (the items enumerated in (a), (b), (c) and (d) are hereinafter collectively referred to as the “Permitte d Encumbrances”). Further, in regard to the Lawnside Property, Seller will retain, and shall not assign, the Gas Station Lease (that is, following the Closing the Gas Station Lease shall be a sublease between the tenant under the applicable Supermarket Lease and the Gas Station Tenant).

2.2.Payment of the Purchase Price.

The Purchase Price shall be paid as follows:

(a)The Deposit, to be paid by certified check, bank check or wire transfer by Purchaser to Escrow Agent on the Effective Date. The Deposit shall be held in a trust account in accordance with Article 10. The Deposit shall be non-refundable to Purchaser, except as expressly set forth in this Agreement, but shall be credited against the Purchase Price at Closing; and

(b)The Purchase Price, at Closing, by wire transfer to a bank and account designated by Seller, decreased by the Deposit, and increased or decreased by the closing adjustments described in Article 3 below.

ARTICLE 3 - CLOSING

3.1.Closing Date.

The parties agree that the Closing shall take place on the Closing Date. TIME IS OF THE ESSENCE of this Agreement and all covenants and deadlines hereunder.

3.2.Closing Place.

The Closing shall take place by escrow through the Escrow Agent or Purchaser’s title insurance company.

3.3.Apportionments.

At the Closing, the following items shall be apportioned for the Properties as of 11:59 p.m. on the day preceding the Closing Date (provided, however, that no such items shall be apportioned with respect to the Stand Alone Properties except for the Annual Fixed Rent to be paid under the applicable Supermarket Leases):

(a) Taxes, water, sewer and any other cost or expense customarily apportioned in a shopping center closing will be apportioned on the basis of a 30-day month and on the basis of the accrual method of accounting. All such items attributable to the period prior

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to the Closing Date shall be credited to Seller, and all such items attributable to the period commencing on the Closing Date shall be credited to Purchaser;

(b)All real estate taxes assessed against the Shopping Center Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bills. If the most recent tax bills received by Seller before the Closing Date are not the actual current tax bills, then Seller and Purchaser shall initially prorate the taxes at closing by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the taxes retroactively when the actual current tax bill is then available. All real estate taxes accruing before the Closing Date shall be the obligation of Seller and all such taxes accruing on and after the Closing date shall be the obligation of Purchaser;

(c)The actual or estimated charges for utilities accrued and payable by Seller shall be prorated between Seller and Purchaser, provided Purchaser is required by law or elects to assume Seller’s utility accounts. Deposits for utilities (the “Utility Deposits”), plus any interest on the Utility Deposits to which Seller are or will be entitled that are held by the provider of the utilities and which are freely transferable to Purchaser, shall at the election of the Purchaser be assigned by Seller to Purchaser and Purchaser shall pay Seller the full amount thereof at Closing. Seller shall retain the right to obtain a refund of any Utility Deposits which are not required to be assigned to Purchaser, and Purchaser will cooperate with Seller as reasonably requested in obtaining any refund. With respect to water, sewer, electric and gas charges, Seller shall make reasonable efforts to obtain a reading of the meter or other consumption measuring device as of the Closing Date. If the Seller is unable to obtain such a reading, Seller shall furnish a reading as of a date not more than thirty (30) days prior to the Closing Date and the unknown charges shall be apportioned on the basis of an estimate computed by utilizing such reading and the most recent bill from the utility provider;

(d)Rent and all other amounts due under the Ground Leases shall be prorated between Seller and Purchaser as of the Closing Date based on the actual number of days in the month during which the Closing Date occurs. Seller shall be entitled to a credit for any pre-paid rent under any of the Ground Leases with respect to the month in which the Closing Date occurs;

(e)The prorated Fixed Annual Rent under the Supermarket Leases shall be credited to Purchaser as provided in Section 9.1 below; and

(f) The rent and any security deposit under the Existing Leases shall be apportioned/credited as provided in Section 9.2 below. Any prepaid rents, rent concessions, tenant improvement allowances or deposits on account of expenses relating in whole or part to any period after the Closing shall be credited to Purchaser at Closing.

At Closing, the parties shall jointly execute a settlement statement (the “Settlement Statement”) setting forth all adjustments and the basis for same. Seller shall deliver to Purchaser a draft of the Settlement Statement with appropriate back up information at least two (2) Business Days prior to the Closing Date. All apportionments shall be subject to reconciliation for a period of one (1) year following Closing.

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3.4.Seller’s Deliveries.

At the Closing, Seller shall, on compliance by Purchaser with the obligations of Purchaser to be complied with under this Agreement prior to or at the Closing, deliver to Purchaser each of the following:

(a)Deeds in the forms attached as Exhibit D-1 through D-3, duly executed by Seller and in recordable form, to convey to Purchaser title to the Properties, subject only to the Permitted Encumbrances (the “Deeds”) together with such other instruments that are required or customary for the Deeds to be recorded (including, without limitation, any forms to be filed in connection with realty transfer fees, transfer taxes, document stamps or similar charges);

(b)(i) A standard form affidavit of title together with such other reasonable instruments or certifications reasonably requested by Purchaser’s title insurer so that Purchaser may obtain title policies for the Properties subject only to the Permitted Exceptions and (ii) any reasonable instruments, certifications or funds required in connection with the satisfaction of the Title Conditions;

(c)The Supermarket Leases, duly executed;

(d)An Assignment and Assumption of Leases for the Existing Leases for the Shopping Center Property in the form attached hereto as Exhibit E (the “Existing Leases Assignment”);

(e)An Assignment and Assumption of Ground Lease for each of the Ground Leases in the form attached hereto as Exhibit F (the “Ground Lease Assignments”);

(f)The Existing Tenant Estoppels and the Ground Landlord Estoppels;

(g)Tenant attornment letters from Seller to the Existing Tenants in the form of Exhibit G attached hereto;

(h)Affidavits sworn to by each party that constitutes Seller, in the form attached hereto as Exhibit H, stating under penalty of perjury that such Seller is not a foreign person as defined in Section 1445 of the Internal Revenue Code and stating such Seller’s United States taxpayer identification number;

(i)A Secretary’s Certificate from A&P evidencing the necessary corporate approvals and authority of the Seller hereunder and of the tenant(s) and guarantor under the Supermarket Leases in the form attached hereto as Exhibit M and, if applicable, such other evidence of authority as may be reasonably required by Purchaser’s title insurer in connection with the transactions contemplated herein;

(j)The Settlement Statement;

(k)Original lease files for the Existing Leases and the Ground Leases (including, without limitation, fully-executed originals (if available) of the Existing Leases and the Ground Leases); and

(l)All books, records and other documents, databases, computer files and other materials in the possession or control of Seller and material to Purchaser’s ownership or

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operation of the Properties, including correspondence, Permits, licenses and approvals, as-built drawings, plans and specifications, and guaranties and warranties.

3.5.Purchaser’s Deliveries.

At the Closing, Purchaser shall, on compliance by Seller with the obligations of Seller to be complied with under this Agreement prior to or at Closing, and satisfaction (or waiver by Purchaser) of all conditions set forth in Article 11 of this Agreement to Purchaser’s obligation to close, deliver to Seller each of the following:

(a)The Purchase Price (subject to Section 2.2(b));

(b)The Supermarket Leases;

(c)The Existing Leases Assignment;

(d)The Ground Lease Assignments; and

(e)The Settlement Statement.

3.6.Pre-submission.

Each party agrees to submit to the other party’s attorneys copies of all documents to be delivered by such party at the Closing at least two (2) Business Days prior to Closing to the extent available, or if same are not available at said time, at such other time in as far in advance of the Closing as possible.

3.7.Realty Transfer Fee and Other Fees and Taxes.

(a)The realty transfer fee, transfer tax, document stamps or similar charges imposed on or in connection with the transfer of the Properties pursuant to this Agreement shall be paid by Seller. Any mortgage recording tax incurred with respect to any financing of Purchaser or commercial mansion fees shall be paid by Purchaser.

(b)Seller shall pay its own counsel fees.

(c)All fees of Purchaser’s counsel, survey, due diligence, recording fees, and title insurance premiums with respect to the transaction hereunder shall be paid by Purchaser.

(d)All other governmental fees and taxes, if any, which are not otherwise addressed herein shall be paid in accordance with local custom in the county where the respective Property is located.

3.8.Assessments.

If, on the Closing Date, the Properties or any part thereof shall be or shall have been affected by an assessment or assessments which are or may become payable in annual installments of which the first installment is then due or has been paid, then for the purposes of this Agreement, the unpaid installments of any such assessments shall all be considered due and payable and shall be credited to Purchaser at or prior to Closing. Any other such assessments shall be Purchaser’s responsibility to pay directly. Notwithstanding the foregoing, this Section 3.8 shall not be applicable to the Stand Alone Properties.

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ARTICLE 4 - TITLE AND CONDITION OF PROPERTY

4.1.Title, Permitted Encumbrances.

Title to the Properties shall be delivered at the Closing, subject only to the Permitted Encumbrances. Seller covenants and agrees (a) not to encumber the Properties in any way during the pendency of this Agreement, (b) to deliver title to the Properties subject only to the Permitted Encumbrances and (c) to cause all Title Conditions to be satisfied on or prior to the Closing Date. Without limiting the generality of the foregoing, Seller hereby agrees that on or prior to the Closing Date Seller shall satisfy or cure all taxes, mortgages, deeds of trust, judgments, attachments, mechanic’s or materialmen’s liens or other such monetary encumbrances on the Properties.

4.2.Condition of Properties.

PURCHASER REPRESENTS, WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS PURCHASING THE PROPERTIES IN THEIR “AS-IS”, “WHERE IS” CONDITION “WITH ALL FAULTS” AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATION OR GUARANTEES, EITHER EXPRESS OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF THE SELLER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. Purchaser acknowledges that Purchaser has not relied, and is not relying, upon any information, document, sales brochures or other literature, maps or sketches, projection, proforma, statement, representation, guarantee or warranty (whether express or implied, or oral or written, or material or immaterial) that may have been given by or made by or on behalf of the Seller except as expressly set forth herein.

ARTICLE 5 — PRE- CLOSING OBLIGATIONS

5.1Covenants of Seller Pending Closing.

(a)From and after the Effective Date through the Closing Date, except as otherwise provided by this Agreement, Seller shall not enter into any contracts for services or otherwise that may be binding upon the Properties or upon Purchaser, nor shall any easements be created or any licenses given on the Properties, nor shall any legal action be taken with respect to the Properties, nor enter into any new lease of space in the Properties, amend, modify or waive any right under an Existing Lease (except as provided in Section 9.2 below) or drawdown on any lease deposit or giv e a notice of default or commence or threaten to commence any action against any tenant or other third party having an interest in the Properties, or amend or take any other action with respect to any of the Ground Leases, without the express prior written consent of Purchaser in each instance, which consent shall be granted or withheld in Purchaser’s sole discretion;

(b)From the Effective Date through the Closing Date, except as otherwise provided by this Agreement, Seller shall continue to operate the Properties in substantially the same manner as Seller has prior to the Effective Date;

(c)From the Effective Date through the Closing Date, except as otherwise provided by this Agreement, Seller shall not initiate, consent to, approve or otherwise take any

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action with respect to a change in any Permit or applicable zoning or any other governmental rules or regulations presently applicable to all or any part of the Properties;

(d)From the Effective Date through the Closing Date, Seller shall promptly give Purchaser a reasonably detailed written notice of: (i) any fire, flood or other material adverse change with respect to the Properties; (ii) any actual or proposed condemnation (or proceeding in lieu thereof) of which Seller obtains Knowledge; (iii) any written notice received by Seller claiming that the Property or the use and operation thereof fails to comply with Applicable Law; (iv) any written notice given or received by or on behalf of Seller claiming that Seller or any Existin g Tenant is in default under an Existing Lease; (v) any written notice given or received by or on behalf of Seller claiming that Seller or any Ground Landlord is in default under any of the Ground Leases; and (vi) any written notice received by any Seller concerning any pending or threatened litigation or administrative proceeding affecting any of the Properties; and

(e)From the Effective Date through the Closing Date, Seller shall not sell or encumber all or any portion the Properties or any direct or indirect interest therein or enter into any agreement relating thereto.

ARTICLE 6 - CASUALTY AND CONDEMNATION

6.1Casualty.

The risk of loss or damage to the Properties by fire or otherwise, beyond ordinary wear and tear, shall be upon Seller until the Closing, provided however, that, in the event of a casualty, Purchaser shall accept the Properties in their then “as is” condition at Closing (which shall not be delayed as a result of the casualty) and with respect to any casualty applicable to any portion of the Shopping Center Property subject to an Existing Lease, Seller shall, at the Closing, assign to Purchaser its rights under all insurance proceeds as a result of such casualty (to the extent applicable to such portion(s) of the Properties) and shall pay to Purchaser all insurance proceeds received by Seller with respect thereto, and Purchaser shall receive a credit at Closing in an amount equal to the deductibles under the insurance policies applicable thereto (provided, however, that with resp ect to any of the Stand Alone Properties or any portion of the Shopping Center Property that will be subject to a Supermarket Lease upon the Closing, Seller shall not so assign such rights, and Purchaser’s and Seller’s rights and obligations following the casualty shall be governed by the applicable Supermarket Lease). Notwithstanding the foregoing, in the event that any casualty at a Property affects more than ten percent (10%) of the Improvements for such Property or entitles an Existing Tenant to terminate its Existing Lease or cease paying all or some of its rent or entitles a Ground Landlord to terminate its Ground Lease or would entitle a tenant under a Supermarket Lease (under the provisions of the applicable Supermarket Lease to be delivered at Closing) to terminate the applicable Supermarket Lease or cease paying all or some of its rent, then Purchaser shall have the right to remove such Property from this Agreement by giving notice of same to Seller within ten (10) Business Days afte r the casualty, and the parties shall proceed to a Partial Closing without such Property.

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6.2 Condemnation.

(a)In the event that a permanent (or temporary that exceeds thirty (30) days) public condemnation, eminent domain or other taking proceeding shall be completed, commenced or threatened against an entire Property, or a material portion of any Property, prior to Closing, such that the Property cannot, in Purchaser’s reasonable judgment, be used for its intended purpose or which will impact access or parking, permit an Existing Tenant to terminate its Existing Lease or stop paying full rent, permit a Ground Landlord to terminate its Ground Lease, entitle a tenant under a Supermar ket Lease (under the provisions of the applicable Supermarket Lease to be delivered at Closing) to terminate the applicable Supermarket Lease or stop paying full rent or reduce the value of any of the Properties by more than ten percent (10%), then Purchaser shall have the right to remove such Property from this Agreement by giving notice of same to Seller within ten (10) Business Days after the condemnation notice or other event giving Purchaser such termination right, and the parties shall proceed to a Partial Closing without such Property.

(b)In the event of a permanent public condemnation, eminent domain or other taking proceeding of a portion of the Properties prior to Closing, which is not described in Section 6.2(a), Purchaser shall complete the sale without any adjustment to the Purchase Price or other compensation for such condemnation except that any proceeds received by the Seller before the Closing on account thereof shall be paid over to Purchaser at Closing as a Closing adjustment, and Seller shall transfer and assign to Purchaser at Closing all of Seller’s rights and interests in and to such award and proceeds and any proceeds received by the Seller after Closing on account thereof shall be paid over to Purchaser as a post-closing adjustment.

(c) The provisions of this Section 6.2 shall survive the Closing; provided, however, in the event of any inconsistency between the provisions of this Section 6.2 and any applicable provisions of any of the Supermarket Leases, the applicable provisions of the applicable Supermarket Lease or Supermarket Leases shall govern and control.

ARTICLE 7- REPRESENTATIONS AND WARRANTIES

7.1Warranties and Representations of Seller.

Seller represents and warrants to, and covenants and agrees with, Purchaser as of the Effective Date (and on the Closing Date shall be deemed to reaffirm all such representations, covenants and warranties as of that date) that:

(a)Seller is duly organized, validly existing and in good standing under the laws of the state of its incorporation/formation and authorized to do business in the jurisdictions where the Properties are situate. The execution, delivery and performance by Purchaser of the terms of this Agreement have been duly authorized by all necessary corporate action and do not conflict with the organizational/formation documents of Seller or any agreement to which Seller is bound or is a party or requires the consent of any party;

(b)Seller has the legal right, power and authority to enter into this Agreement and to perform all of its obligations hereunder, and this Agreement constitutes the legal, valid and binding obligation of Seller, enforceable in accordance with its terms. The execution and delivery by Seller of this Agreement and the Seller’s performance hereunder will

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not conflict with, or result in a breach of, any of the terms, covenants and provisions of any agreement or instrument to which Seller is a party or by which it is bound, or, to Seller’s Knowledge, any Governmental Regulation, or judgment, writ, injunction or decree of any court or governmental authority affecting Seller. The individual executing this Agreement on Seller’s behalf has been duly authorized to do so by all necessary all corporate action;

(c)Seller does not have Knowledge of any pending or threatened condemnation, eminent domain or similar proceeding affecting the Properties or any portion thereof;

(d)To Seller’s Knowledge and except as would not have a Material Adverse Effect, there are no suits, actions, claims or proceedings pending or threatened against or affecting the Properties, the Permits or any of the transactions provided for herein before any court or administrative agency or officer (including, without limitation, any bankruptcy, insolvency or similar proceeding) seeking to restrain, enjoin or otherwise prohibit the consummation of any of the transactions contemplated by this Agreement, and Seller has not breached or otherwise failed to perform with respect to any judgment, order, writ, injunction, rule or regulation of any court or governmental agency or office to which Seller is subject in any way affecting the Seller (but only to the extent that any such breach or failure to perform could reasonably be expected to have a Material Adverse Effect on Purchaser following the Closing), the Properties, the Permits or any of the transactions provided for herein;

(e)Seller does not have Knowledge of any pending or threatened special assessments affecting the Properties or any portion thereof. There is no application or proceeding pending with respect to the reduction of the assessed valuation of any portion of the Properties;

(f)Seller is familiar with the provisions of Sections 897 and 1445 of the Internal Revenue Code (the “Code”), and Seller is not a “foreign person” or “disregarded entity” as those terms are defined in Section 1445(f)(3) of the Code;

(g) No bankruptcy or insolvency proceeding or petition under the U.S. Bankruptcy Code or any state bankruptcy or insolvency law filed by or against Seller is pending, or, to Seller’s Knowledge, threatened. Seller has not caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator, liquidator or similar official in any federal, state or foreign judicial or non judicial proceeding, to hold, administer and/or liquidate all or substantially all of its assets, or made an assignment for the benefit of creditors. Seller is solvent, and Seller will not be made insolvent by the consummation of the transactions contemplated by this Agreement, nor does Seller contemplate any pending insolvency or believe or have reason to believe that it will not be able to pay its debts and other obligations as they become due (the parties acknowledge and agree that the terms and phrases used in this sentence shall be interpreted in accordance with Section 548 of the U.S. Bankruptcy Code). Seller did not enter into this Agreement and the Seller will not consummate the transactions contemplated by this Agreement with any intent to hinder, delay or defraud any creditors. The Purchase Price is good and valuable consideration for the Properties and has been negotiated in an arm’s length transaction between Seller and Purchaser; without limitation of the foregoing, Seller continued to market the Properties until immediately prior to the execution of this Agreement upon a separate

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understanding between Purchaser and Seller, which understanding is terminated by the execution of this Agreement, that Purchaser would have the right to match any materially higher offers received by Seller in connection with the sale of the Properties;

(h)To Seller’s Knowledge, except as disclosed in the Environmental Reports, (i) there has never been any release of Hazardous Materials into the environment from the Properties, or in, on or under the Properties, that has not been remediated in accordance with all Environmental Laws; and (ii) there are no underground fuel or oil storage tanks located at the Properties;

(i)Other than the Existing Leases (and one (1) lease at the Property located in Lawnside, New Jersey that will be a sublease under the Supermarket Lease at such Property following the Closing in respect of which Purchaser shall have no responsibility, obligation or liability), there are no leases or other agreements (written or verbal) that grant any possessory interest in and to any space situated on or in the Properties or that otherwise give rights with regard to use of the Properties for occupancy of any kind affecting the Properties;

(j)To Seller’s Knowledge, there are no service, maintenance, supply or other similar contracts affecting the Properties that will be binding on Purchaser; and in the event that any such contracts are discovered after the Closing, Seller shall satisfy all obligations thereunder and terminate such agreements and within ten (10) Business Days following Purchaser’s written demand, and pay in full any cost, demand, claim or other expense of any kind or nature related thereto;

(k)Seller has not received written notice of any uncured claims, demands, suits, orders, decrees or judgments relative to violations of (i) any of the Permits or any conditions thereof, or (ii) or any easement, restrictive covenant or other matter of record affecting the Properties;

(l) The Existing Leases are in full force and effect and have not been modified, amended, extended or assigned, except as expressly set forth in the Rent Roll. With respect to the Existing Leases: (i) the rents and other charges payable by the Existing Tenants under the Lease are being paid on a current basis and there are no arrearages; (ii) there are no existing defaults by either Seller as the landlord, or to Seller’s Knowledge, the Existing Tenants, nor to Seller’s Knowledge are there any existing state of facts or conditions which, upon passage of time and/or giving of notice, could give rise to a default by either Seller as the landlord or the Existing Tenants; (iii) no rent under the Existing Leases have been paid more than thirty (30) days in advance; (iv) there are no security deposits under any Existing Leases except as shown on the Rent Roll, and a ny such security deposits are cash security deposits; and (v) all brokerage commissions and tenant improvement allowance (and any other amount payable to a tenant) payable by Seller as landlord (whether or not then due and payable) under or with respect to the Existing Leases, including, without limitation, any renewal or extension thereof have been paid in full or will be as of the Closing or credited to Purchaser against the Purchase Price. Seller has properly performed all work required to be performed by landlord under each of the Existing Leases in accordance with provisions of the Existing Leases and, as the landlord under the Existing Leases, Seller has no further construction obligations, whether for initial construction or with respect to any expansion options, and has paid in full any tenant improvement contributions

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or other allowances. To Seller’s Knowledge, any documents, test results or other submissions required to be delivered to the Existing Tenants under the Existing Leases have been delivered. Seller has no Knowledge that any Existing Tenant intends to vacate its space, cease operating for business or request protection under any bankruptcy laws, insolvency laws or other similar laws. The information on the Rent Roll is materially true and accurate and Seller has provided true, correct and complete copies of the Existing Leases to Purchaser. No lease security deposit has been drawdown on;

(m)Seller has not given or received a notice of any violation of any Applicable Law governing either of the Properties or any covenant, condition or restriction or any agreement contained in any instrument encumbering or benefiting either of the Properties that remains uncured;

(n)No person, firm, corporation or other entity has any right or option (including, without limitation, any right of first refusal or first offer) to purchase the Properties or any portion thereof;

(o)Seller has delivered to Purchaser true, correct and complete copies of the Ground Leases. The Ground Leases are in full force and effect, have not been amended, modified or supplemented, and each constitutes the entire agreement between Seller and the applicable Ground Landlord. There is no default by Seller, nor to Seller’s Knowledge any Ground Landlord under any of the Ground Leases and, to Seller’s Knowledge, no condition or event that, with the passage of time or giving of notice, or both, has occurred that would constitute such a default. No security deposit has b een provided in connection with any of the Ground Leases. No brokerage or leasing commission or fee payable by the tenant under any the Ground Leases is or will hereafter be due, and there are no agreements that will obligate Purchaser to pay any such amount on or after Closing in connection with any renewals or extensions or amendments of any of the Ground Leases;

(p)The sales and EBITDA information attached as Exhibit J is true, correct and accurate in all material respects; and

(q) At Closing there shall not be any collective bargaining agreements, management agreements or other employee agreements binding on Purchaser and Purchaser shall have no obligation with respect to any employees, and the only employees at the Properties shall be the employees of the tenants under the Existing Leases and the Supermarket Leases (and the only such collective bargaining agreements, management agreements or other employee agreements shall be binding on such tenants, but not Purchaser).

7.2Survival.

The representations and warranties made by Seller in Section 7.1 are true and correct as of the date of this Agreement and shall be true and correct and deemed repeated as of Closing, and shall survive Closing for a period of twelve (12) months, provided however, the Unlimited Representations shall survive closing indefinitely without any such limitation on survival.

7.3Warranties and Representations of Purchaser.

Purchaser warrants and represents to, and covenants and agrees with, Seller as follows:

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(a)Purchaser is a limited liability company, has full power and authority to execute, deliver and carry out its obligations under this Agreement and all documents to be executed in connection herewith and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and all documents to be executed in connection herewith. All persons executing this Agreement on behalf of the Purchaser have been duly authorized to do so;

(b)This Agreement is the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms;

(c)The execution, delivery and performance of this Agreement by Purchaser in accordance with its terms, will not violate, conflict with or result in the breach of any agreement or any law, regulation, contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is or may be bound;

(d)No bankruptcy or insolvency proceeding or petition under the U.S. Bankruptcy Code or any state bankruptcy or insolvency law filed by or against Purchaser is pending, or, to Purchaser’s knowledge, threatened. Purchaser has not caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator, liquidator or similar official in any federal, state or foreign judicial or non judicial proceeding, to hold, administer and/or liquidate all or substantially all of its assets, or made an assignment for the benefit of creditors; and

(e) Purchaser has funds sufficient for the Purchase Price. Purchaser acknowledges and agrees that this transaction is not contingent upon financing of any kind or the availability of any specific funding source.

7.4Survival.

The representations made by Purchaser in Section 7.3 are true and correct as of the date of this Agreement and shall be true and correct and deemed repeated as of Closing, but shall not survive Closing.

ARTICLE 8- DEFAULT

8.1 Default by Purchaser.

In the event that Purchaser defaults under this Agreement and such default continues for five (5) days after written notice from Seller to Purchaser specifying such default, Seller shall have as its sole and exclusive remedy the right to terminate this Agreement and retain the Deposit without the necessity of proving actual damages due to the difficulty of proving actual damages resulting from the breach of this Agreement by Purchaser. In the event that litigation ensues regarding Seller’s right to retain the Deposit and Seller ultimately prevails, Purchaser hereby waives any right to challenge the enforceability of this Section 8.1 or its reasonability.

8.2Default by Seller.

In the event that Seller defaults under this Agreement and such default continues for five (5) days after written notice from Purchaser to Seller specifying such default, the Deposit shall immediately be refunded to Purchaser following Purchaser’s written demand and Purchaser

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shall, as its sole and exclusive remedy, have the right either (a) to seek specific performance of this Agreement, or, in the alternative (or if Purchaser sought specific performance and such remedy was denied or otherwise not available to Purchaser for any reason), (b) to terminate this Agreement and receive liquidated damages of $2,000,000 from Seller without the necessity of proving actual damages due to the difficulty of proving actual damages resulting from the breach of this Agreement by Seller. In the event that litigation ensues regarding such liquidated damages or the amount thereof, Seller hereby waives any right to challenge the enforceability of this Section 8.2 or its reasonability. The parties agree that except as expressly set forth in this Section 8.2 no damages of any kind whatsoever (including, without limitation, compensatory, special or consequential damages) shall be awa rded as a result of Seller’s default. Purchaser may, in its sole and absolute discretion, extend any time for performance of any obligation of Seller under this Agreement by written notice of such election given to Seller for one or more periods of up to thirty (30) days in total to provide additional time for the performance of any such obligation.

8.3Partial Closing.

In addition to Purchaser’s remedies set forth in Section 8.2 above, if any default by Seller under this Agreement affects less than all of the Properties, Purchaser may, in its sole and absolute discretion, by written notice of such election given to Seller, elect to proceed to a Partial Closing with respect to the Properties that are not affected by such default. In connection with such an election Purchaser may, in its sole and absolute discretion, by written notice of such election given to Seller, elect to consummate a Partial Closing with respect to the Property or Properties subject to Seller’s default following Seller’s cure thereof.

ARTICLE 9 — SUPERMARKET LEASES

9.1Supermarket Leases.

(a)At Closing, the parties shall mutually execute and deliver the Supermarket Leases for the Properties in the forms attached as Exhibits B-1 through B-6.

(a) At the Closing, Seller, as “Tenant,” shall pay the Fixed Annual Rent described in Section 5 of the Supermarket Leases, plus, with respect to the Supermarket Lease for the Shopping Center Property its proportionate share of estimated monthly CAM, Real Estate Taxes, and insurance, on a prorated basis as of 11:59 p.m. on the day preceding the Closing Date.

9.2Existing Leases.

(a) At the Closing, base rent and additional rent under the Existing Leases shall be apportioned for the Property as of 11:59 p.m. on the day preceding the Closing Date. After Closing, any rent under the Existing Leases collected by either party shall be first credited to Purchaser for any rents then due and payable, next to Seller and Purchaser for the rent payable in the month in which the Closing occurs and then against any pre-closing arrearages due to Seller. In the first twelve (12) months following the Closing, Seller may not commence a legal action against any Existing Tenant. Thereafter, Seller may, but shall have no obligation to, commence a legal action to recover pre-closing arrearages from an Existing Tenant (provided,

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however, in no event shall Seller seek to terminate an Existing Lease or evict any Existing Tenant in connection with any such action).

(b)Existing Tenants’ payments on account of “CAM” and percentage rent under the Existing Leases and the basis for billing therefor will be accounted for at Closing based on information available at such time, and Seller and Purchaser shall cooperate with respect thereto during the twelve (12) month period following the Closing such that all amounts accruing with respect thereto prior the Closing Date are paid or otherwise credited to Seller and all amounts accruing with respect thereto on or after the Closing Date are paid or otherwise credited to Purchaser.

(c)At Closing, Purchaser shall receive a credit against the Purchase Price for any and all security deposits held by Seller pursuant to the Existing Leases.

ARTICLE 10 - ESCROW AGENT

10.1 Deposit in Escrow.

The Deposit and any interest earned thereon shall be held by the Escrow Agent, in trust and on the terms hereinafter set forth. The term “Deposit” shall include any interest earned thereon.

10.2 Deliveries by Escrow Agent.

If Purchaser demands the Deposit pursuant to Section 8.1 or terminates this Agreement pursuant to Section 11.2(a), Escrow Agent shall immediately return the Deposit to Purchaser. Except as provided in the previous sentence or at Closing, when the entire Deposit shall be paid to Seller, Escrow Agent shall not make any disbursements of the Deposit unless instructed by written instructions jointly signed by Seller and Purchaser directing Escrow Agent to disburse funds otherwise.

10.3 Disputes.

In the event of a dispute that results in litigation between Seller and Purchaser, the Escrow Agent shall deliver the monies held in the escrow to the Clerk of the Court in which such litigation is pending, or in the event of a dispute not then resulting in litigation, the Escrow Agent may continue to hold the monies in escrow or take such affirmative steps as the Escrow Agent may, at the Escrow Agent’s option, elect in order to terminate the Escrow Agent’s duties, including, but not limited to, depositing the monies held in the escrow in any court which the Escrow Agent shall select in New Jersey, and an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party.

10.4 Release and Indemnity.

(a) It is agreed that the duties of the Escrow Agent are only as herein specifically provided and are purely ministerial in nature, and that the Escrow Agent shall incur no liability whatsoever except for willful misconduct or gross negligence, as long as the Escrow Agent has acted in good faith. The Seller and Purchaser each release the Escrow Agent from any act done or omitted to be done by the Escrow Agent in good faith in the performance of its duties hereunder.

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(b) Seller and Purchaser shall jointly and severally hold Escrow Agent harmless from and against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.

10.5 Stakeholder Only.

(a)The Escrow Agent is acting as a stakeholder only with respect to the monies to be deposited in the escrow. Upon making delivery of such monies in the manner herein provided, the Escrow Agent shall have no further liability hereunder.

(b)Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Deposit with a court of competent jurisdiction in New Jersey. After such resignation, Escrow Agent shall have no further duties or liability hereund er.

ARTICLE 11 — CONDITIONS TO CLOSING

11.1 Conditions Precedent.

Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 11.1 on or before the Closing Date:

(a) Purchaser shall have received an estoppel certificate from Fashion Bug (the “Estoppel Requirement”). All Tenant estoppel certificates required under this Section 11.1(a) shall be substantially in the form attached hereto as Exhibit K. No tenant estoppel certificate shall count toward the Estoppel Requirement if it discloses: (i) any material default by landlord or tenant or condition that, with the giving of notice, the passage of time, or both, would become a default, unless Seller actually cures the alleged default or condition prior to Closing to Purchaser’s reasonable satisfaction; (ii) any materially adverse amendment, modification or supplement to the Existing Lease in question that was not provided to Purchaser before the Effective Date; (iii) any outstanding tenant improvement allowances or ob ligations, moving allowances, free rent or other inducements or concessions owed to any Existing Tenant that were not disclosed in writing to Purchaser before the Effective Date, unless, with respect to any payment obligation to an Existing Tenant, Seller agrees to credit the amount of the obligation to Purchaser at Closing; or (iv) any other information that is inconsistent in any material adverse respect with the Rent Roll or the copies of the Existing Leases provided to Purchaser before the Effective Date. (Although not a condition to Closing, Seller, as a post-Closing requirement shall use good faith, commercially reasonable efforts to obtain an estoppel certificate from each tenant under each of the Existing Leases, and shall deliver copies such estoppels to Purchaser promptly upon receipt thereof by Seller);

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(b)Purchaser shall have received an estoppel certificate from each Ground Landlord reflecting the terms of each Ground Lease and otherwise substantially in the form attached hereto as Exhibit L (the “Ground Landlord Estoppels”). This condition shall not be satisfied if any of the Ground Landlord Estoppels discloses: (i) any default under any of the Ground Leases or condition that, with the giving of notice, the passage of time, or both, would become a default unless Seller actually cures the alleged default or condition pr ior to Closing to Purchaser’s reasonable satisfaction; (ii) any material amendment, modification or supplement to any of the Ground Leases that was not provided to Purchaser before the Effective Date; or (iii) any other information that is inconsistent in any material respect with the Ground Leases or related information as provided to Purchaser before the Effective Date. Seller shall use good faith, commercially reasonable efforts to obtain the Ground Landlord Estoppels from each of the Ground Landlords, and shall deliver a copy of such estoppels to Purchaser promptly upon receipt thereof;

(c)On the Closing Date title to the Properties shall be conveyed to Purchaser in the condition required pursuant to Section 2.1 and Section 4.1; and

(d) Seller shall prepare and Purchaser shall cooperate in good faith in the filing with the State of New Jersey Division of Taxation of a Notice of Sale (C-9600) (and a copy of this Agreement shall be submitted therewith) and Asset Transfer Tax Declaration (TTD) and Seller shall obtain a so-called “Bulk Sales Letter” before the Closing assuring that Purchaser shall not be personally liable for the payment to the State of New Jersey of taxes determined to be due from Seller as a result of the sale of the Lawnside Property. In connection therewith and without limiting the generality of the foregoing, the Closing shall not occur until the State of New Jersey has issued such a so-called “bulk sales letter” and, if such letter requires the withholding of Seller’s proceeds from the Closing, an escrow therefor shall be established with the Escrow Agent and the funds held thereunder shall not be released to Seller except in accordance with instructions from the New Jersey Division of Taxation.

11.2 Failure of Condition Precedent.

(a)If any condition precedent set forth in Section 11.1 has not been satisfied on the Closing Date then Purchaser may terminate this Agreement by written notice to Seller, in which event the Deposit shall immediately be returned to Purchaser and the parties shall have no further obligations hereunder.

(b)Notwithstanding the foregoing, if the conditions set forth in Section 11.1 shall not have been fulfilled on or before the Closing Date, either Purchaser or Seller shall have the right, exercisable by written notice to the other party on or prior to the Closing Date, to extend the Closing Date (subject to Purchaser’s termination right set forth in the following sentence) for a period of thirty (30) days to provide additional time for the fulfillment of such conditions (and, if all such conditions are so fulfilled, the Closing Date shall be the date that is two (2)  Business Days thereafter). Notwithstanding the foregoing, commencing on the date that is fifteen (15) days following the commencement of such thirty (30) day period, Purchaser may elect, in its sole discretion, to terminate this Agreement pursuant to Section 11.2(a) above or proceed to a Partial Closing pursuant to Section 11.2(c) below. At the end of such thirty (30) day

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period, Seller may elect, in its sole discretion, to terminate this Agreement pursuant to Section 11.2(a) above or proceed to a Partial Closing pursuant to Section 11.2(c) below.

(c)Without limitation of and in addition to the provisions of Sections 11.2(a) and (b) above, if any failure of condition precedent affects less than all of the Properties, Purchaser may, in its sole and absolute discretion, by written notice of such election given to Seller, elect to proceed to a Partial Closing with respect to the Properties that are not affected by such failure.

(d)The parties acknowledge and agree that the “Bulk Sales Letter” described in Section 11.1(d) will not be available by the Closing Date. Therefore, this Section 11.2(d) shall constitute Seller’s written notice to extend the Closing Date for the Lawnside Property, subject to and in accordance with the provisions of Section 11.2(b) (provided, however, that the fifteen (15) day period generally provided to Purchaser pursuant to Section 11.2(b) shall be thirty (30) days with respect to the condition described in Section 11.1( d)). Subject to all applicable provisions of the Agreement, the Closing Date for the Lawnside Property will be on the second (2nd) Business Day following Purchaser’s receipt of the Bulk Sales Letter that satisfies the requirements of Section 11.1(d).

ARTICLE 12 - MISCELLANEOUS

12.1 Entire Agreement.

This Agreement, including all exhibits, schedules and documents attached hereto, contains the entire understanding of the parties hereto with respect to the subject matter hereof, and no prior or other writing or oral agreement or undertaking pertaining to any such matter shall be effective for any purpose. This Agreement may not be changed or modified, nor any provision hereof waived, except in writing by the party to be charged thereby.

12.2 Broker.

(a)Purchaser and Seller represent and warrant to each other that neither has dealt with any broker, finder or agent in connection with this transaction other than Holliday Fenoglio Fowler, L.P (“HFF”) and Andy Nemeroff of the Imperial Capital Company (“Nemeroff”).

(b)Seller shall pay HFF a commission pursuant to a separate commission agreement. Purchaser shall pay Nemeroff a commission pursuant to a separate commission agreement.

(c)Seller shall defend, indemnify and hold Purchaser and Nemeroff harmless from and against any claims of or liabilities to any broker, finder or agent based upon dealings or alleged dealings with Seller. Purchaser shall defend, indemnify and hold Seller and HFF harmless from and against any claims of or liabilities to any broker, finder or agent based upon dealings or alleged dealings with Purchaser.

(d)Without limiting the generality of the Section 12.2(c) above, Purchaser shall defend, indemnify and hold Seller and HFF harmless from and against any claims or

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liabilities to Morris Harary and A&H Acquisitions, and any claim from such brokers shall not be a default under this Agreement or a basis to postpone the Closing Date.

(e) The obligations of Purchaser and Seller under this Section shall survive whether or not title closes hereunder and notwithstanding any release of either party pursuant to any other provisions of this Agreement.

12.3 Notices.

(a) All notices, elections, consents, approvals, demands, objections, requests or other communications which Seller, Purchaser or Escrow Agent may be required or desire to give pursuant to, under or by virtue of this Agreement shall be in writing and sent by (i) first class U.S. certified or registered mail, return receipt requested, with postage prepaid, or (ii) nationally recognized overnight courier (for next business day delivery), addressed as follows:

If to Seller:

Pathmark Stores, Inc.

Two Paragon Drive

Montvale, NJ 07645

Attention: Senior Vice President – Real Estate

With a copy to:

Pathmark Stores, Inc.

Two Paragon Drive

Montvale, NJ 07645

Attention: Senior Counsel, Real Estate

If to Purchaser:

c/o Winstanley Enterprises LLC

150 Baker Avenue Extension

Suite 303

Concord, Massachusetts 07142

Attention: Adam D. Winstanley

With a copy to:

Daniel A. Taylor, Esq.

DLA Piper LLP (US)

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33 Arch Street, 26th Floor

Boston, MA 02110-1147

If to Escrow Agent

Chicago Title Insurance Company

265 Franklin Street, 8th floor

Boston, Massachusetts 02110

Attention: David Buczkowski

(b) Seller, Purchaser or Escrow Agent may designate another addressee or change its address for notices and other communications hereunder by a notice given to the other parties in the manner provided in this Section 12.3. A notice or other communication sent in compliance with the provisions of this Section 12.3. shall be deemed given and received on (i) the third (3rd) day following the date it is deposited in the U.S. mail, or (ii) the date it is delivered (or delivery is refused) to the other party if sent by nationally recognized overnight courier. Notices or receipts signed by the respective attorneys for the parties shall be deemed sufficient within the meaning of this Section without the signature of the parties themselves.

12.4 Governing Law.

This Agreement shall be governed by and construed under the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey, Bergen County, and the parties hereby personally submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

12.5 Interpretation.

The parties hereto agree that the terms, covenants and language of this Agreement were the result of negotiations between the parties and, as a result, there shall be no presumption that ambiguities in this Agreement, if any, shall be resolved against either party. The parties hereto further agree that any controversy over the construction of this Agreement shall be decided neutrally, and without regard to events of authorship or negotiation and shall be construed reasonably to carry out its intent. If any provision hereof shall be declared invalid by a court or in any administrative proceedings, then the provisions of this Agreement shall be construed in such manner so as to preserve the validity hereof and the substance of the transaction herein contemplated to the extent possible. The article, paragraph and/or section headings and the arrangement of this Agreement is for the convenience of the parties hereto and do not in any way affect, limit, amplify or modify the terms and provisions hereof.

12.6 Singular, Plural, Etc.

Wherever herein the singular is used the same shall include the plural and the masculine gender shall include the feminine and neuter genders and vice versa, as the context shall require.

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12.7 Counterparts/Signatures.

This Agreement may be executed in several counterparts, which shall constitute one and the same instrument. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

12.8 Computation of Time.

Any time period provided for in this Agreement which ends on a Saturday, Sunday or legal holiday of the State of New Jersey shall be extended to the end of business on the next full Business Day.

12.9 Successors and Assigns.

This Agreement may not be assigned by Purchaser, except upon the express written consent of Seller, which Seller may withhold in its sole and absolute discretion; provided, however, that Purchaser shall have the right, on written notice to Seller, to assign all of its rights and obligations under this Agreement to any party or parties affiliated with Purchaser. Purchaser shall also have the right to assign all of its rights under this Agreement with respect one of the Properties to one entity and all of its rights with respect to the other of the Properties to another entity in which event Seller shall deliver separate closing documents for each such entity (that is, Purchaser may assign [and intends to so assign] its rights to multiple entities such that, at Closing, each Property shall be transferred to a separate entity as “Purchaser”). Any attempted assignment in breach of this S ection 12.9 shall be null, void and of no legal effect. This Agreement shall inure to the benefit of and be binding upon Seller and Purchaser and to Seller’s and Purchaser’s respective heirs, personal representatives, successors and permitted assigns. If multiple parties have executed this Agreement as the “Seller” hereunder, then such parties shall be jointly and severally liable for all obligations of the Seller under this Agreement and the documents delivered at Closing. If Purchaser assigns its rights under this Agreement to multiple parties, then such parties shall be jointly and severally liable for all obligations of the Purchaser under this Agreement and the documents delivered at Closing.

12.10 Exhibits.

Each of the Exhibits referred to herein and attached hereto is incorporated herein by this reference.

12.11 No Recording.

Neither this Agreement nor any memorandum hereof may be recorded without the express written consent of both parties. In the event that either party records this Agreement or any memorandum hereof without first obtaining such consent, such party shall be in material breach of this Agreement and the non-breaching party shall be entitled to pursue any and all of its remedies pursuant to this Agreement or as otherwise provided by law.

12.12 Termination.

Notwithstanding anything to the contrary herein, upon termination of this Agreement neither party shall have any further rights or obligations, except those rights and obligations arising under any sections of this Agreement which expressly survive termination of this Agreement.

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12.13 Confidentiality.

The parties hereto agree that the terms of this Agreement and all materials obtained or information learned by Purchaser in connection with the transaction contemplated hereby will be used solely for Purchaser and Purchaser’s agents in evaluating and closing the transaction and the Properties and all such information and materials (which is not available from third parties) will be kept confidential and shall not be disclosed to any other persons or entities other than as may be required by Purchaser to evaluate and/or close on the Properties or as may be required by law or court order. The provisions of this Section shall survive the Closing or termination of this Agreement.

12.14 No Waiver.

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

12.15 Exculpation.

None of the officers, directors, shareholders, partners, employees, agents, trustees or representatives (cumulatively, “Representatives”) of either party or any of their respective affiliated entities shall be liable, accountable, or subject to any suit, action, proceeding or claim of any of the costs, expenses, or liability arising directly or indirectly, out of the party’s failure or refusal to satisfy its obligations hereunder or out of the transactions contemplated by this Agreement.

12.16 Waiver of Right to Jury Trial.

EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY, VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVES ANY CONSTITUTIONAL OR OTHER RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN THE EVENT OF LITIGATION CONCERNING ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, THE PARTIES PERFORMANCE THEREUNDER OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY INSTRUMENT, DOCUMENT OR AGREEMENT RELATED IN ANY WAY WHATSOEVER TO THE SUBJECT MATTER OF THIS AGREEMENT; AND IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY REPRESENTS THAT IT HAS CONSULTED WITH COUNSEL SPECIFICALLY WITH REFERENCE TO THIS CLAUSE.

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12.17 Attorney Fees.

In the event litigation ensues under this Agreement, the substantially prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs incurred by such prevailing party.

12.18 Exclusivity.

In consideration of the significant time and expense devoted and to be devoted by Purchaser in connection with the acquisition of the Properties, Seller agrees that, during the term of this Agreement, it will not market the Properties or any portion thereof for sale or allow other potential purchasers to inspect or tour the Properties, and have not and will not enter into any agreement to sell the Properties or any portion thereof to any party other than Purchaser. Notwithstanding anything to the contrary in this Agreement, and in addition to the other rights and remedies of Purchaser set forth in this Agreement, if Seller breaches its obligations under this Section 12.18, Purchaser shall have the right, at Purchaser’s election, to injunctive or other equitable relief.

12.19 Tort Indemnity.

Seller shall indemnify and hold Purchaser harmless from and against all costs, expenses, and claims asserted against, or incurred by Purchaser, by reason of any tort claim or any other claim regarding bodily injury or property damage relating to Seller’s ownership and/or use and occupancy of the Properties for the period prior to Closing. This provision shall survive the Closing.

[SIGNATURES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

WITNESS:	SELLER:
	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation
	BY:
Name: Craig H. Feldman	Name: Christopher W. McGarry
	Title: Senior Vice President
	PATHMARK STORES, INC., a Delaware corporation
	BY:
Name: Craig H. Feldman	Name: Christopher W. McGarry
	Title: Vice President and Secretary
	PLAINBRIDGE LLC, a Delaware limited liability company
	BY:
Name: Craig H. Feldman	Name: Christopher W. McGarry
	Title: President
	UPPER DARBY STUART, LLC, a Delaware limited liability company
	BY:
Name: Craig H. Feldman	Name: Christopher W. McGarry
	Title: President

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	LANCASTER PIKE STUART LLC, a Delaware limited liability company
	BY:
Name: Craig H. Feldman	Name: Christopher W. McGarry
	Title: President

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WITNESS:	PURCHASER:
	WE APP I Holdings LLC, a Delaware limited liability company
	By:	WP APP I, LLC, its sole member
		By:	WE APP I Manager, LLC, its
Name:			Manager
		By:	Winstanley Enterprises LLC, its
			Manager
			By:
				Adam Winstanley
			Its:	Manager
WITNESS:	ESCROW AGENT
	CHICAGO TITLE INSURANCE COMPANY
Name:	Name:
	Title:

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LIST OF EXHIBITS

[see Document # 43769357 for exhibits]

Exhibit A	Property Information and Purchase Price Allocation
Exhibit A-1	Legal Description of 421 South 29th Boulevard, Upper Darby, Pennsylvania
Exhibit A-2	Legal Description of 130 White Horse Pike, Lawnside, New Jersey
Exhibit A-3	Legal Description of 4055 Merrick Road, Seaford, New York
Exhibit A-4	Legal Description of 1764 Grand Avenue, Baldwin, New York
Exhibit A-5	Legal Description of 92 1 0 Grand Avenue, Queens, New York
Exhibit A-6	Legal Description of 3901 Lancaster Pike, Wilmington, Delaware
Exhibit B-1	Form of Supermarket Lease for 421 South 29th Boulevard, Upper Darby, Pennsylvania
Exhibit B-2	Form of Supermarket Lease for 1 30 White Horse Pike, Lawnside, New Jersey
Exhibit B-3	Form of Supermarket Lease for 4055 Merrick Road, Seaford, New York
Exhibit B-4	Form of Supermarket Lease for 1764 Grand Avenue, Baldwin, New York
Exhibit B-5	Form of Supermarket Lease for 9210 Grand Avenue, Queens, New York
Exhibit B-6	Form of Supermarket Lease for 3901 Lancaster Pike, Wilmington, Delaware
Exhibit C-1	Rent Roll
Exhibit C-2	Ground Leases
Exhibit C-3	Surveys
Exhibit C-4	Title Conditions
Exhibit C-5	Partial List of Permitted Encumbrances
Exhibit D-1	Form of New Jersey Deed
Exhibit D-2	Form of New York Deed
Exhibit D-3	Form of Pennsylvania Deed
Exhibit D-4	Form of Delaware Deed
Exhibit E	Form of Existing Leases Assignment
Exhibit F	Forms of Ground Lease Assignment
Exhibit G	Form of Existing Tenant Attornment Letter
Exhibit H	Form of FIRPTA Certificate
Exhibit I	List of Environmental Reports
Exhibit J	Sales and EBITDA Information
Exhibit K	Form of Existing Tenant Estoppel
Exhibit L	Forms of Ground Landlord Consent and Estoppel
Exhibit M	Form of Secretary’s Certificate

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Agreement of Sale and Leaseback

EXHIBITS

30

EXHIBIT A

PROPERTY INFORMATION AND PURCHASE PRICE ALLOCATION

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EXHIBIT A-1

Legal Description

421 South 69th Blvd.

Upper Darby, PA

PREMISES A:

ALL THAT CERTAIN lot or piece of ground with the improvements thereon erected, Situate in the Township of Upper Darby, County of Delaware and State of PA and described according to Property Topographic Plan made for Supermarkets General Corporation by H. Gilroy Damon Associates, Inc., Civil Engineers, Sharon Hill, PA, dated 5/10/1985 as follows, to wit:

BEGINNING at a point in the center line of Heather Road (40 feet wide) at the distance of 120.13 feet measured South 26 degrees 8 minutes 15 seconds West from the center line of Marshall Road (60 feet wide) and the extended center line of Heather Road; thence extending along the center line of Heather Road, South 26 degrees 8 minutes 15 seconds West 208.40 feet to a point; thence leaving the said center line of Heather Road and extending North 73 degrees 32 minutes 1 second West 76.61 feet to a point; thence extending South 33 degrees 56 minutes 52 seconds West 45.89 feet to a point; thence extending North 60 degrees 17 minutes 3 second West 95.59 feet to a point; thence extending North 18 degrees 41 minutes 45 seconds West 159.16 feet to a point; thence extending North 1 degree 51 minutes 53 seconds East 44.50 feet to a point in the center line of a 10 feet wide alley; thence extending along center line of said 10 feet wide alley; North 59 degrees 30 minutes 15 seconds East 33.53 feet to a point of curve; thence still along said center line of said alley on a line curving to the right with a radius of 160 feet, the arc distance of 150.80 feet to a point of tangency; thence still further along the center line of said alley South 66 degrees 29 minutes 45 seconds East 163.13 feet to a point in the center line of Heather Road being the first mentioned point and place of beginning.

TOGETHER with and subject to the use of Heather Road as proposed (40 feet wide).

TOGETHER with the free and common use, right, liberty and privilege of the aforesaid alley, as and for an alley passageway and watercourse at all times hereafter, forever in common with the owners, tenants and occupiers of the other lots of ground bounding thereon and entitled to the use thereof.

SUBJECT however, to the proportionate part of the expense of keeping said alley in good order, condition and repair.

PREMISES B:

ALL THAT CERTAIN lot or piece of ground with the buildings and improvements thereon erected, Situate in the Township of Upper Darby, County of Delaware and Commonwealth of PA, described according to a Plan made for Supermarkets General

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Corporation by H. Gilroy Damon Associates, Inc., Civil Engineers, Sharon Hill, PA, dated 10/14/1977 and last revised 5/2/1978 as follows, to wit:

BEGINNING at a point on the Northeast side of Sixty Ninth Street (70 feet wide) at the distance of 90.48 feet measured South 36 degrees 24 minutes 12 seconds East along the said side thereof from its intersection with the Southeast side of Marshall Road (60 feet wide); thence along the middle of a 10 feet wide alley; North 59 degrees 30 minutes 15 seconds East 240.27 feet to a spike; thence North 30 degrees 29 minutes 45 seconds West crossing an iron pipe on the Southeast side of Marshall Road 90 feet from said last mentioned point the distance of 126.27 feet to a point in the bed of Marshall Road; thence along the title line in the bed of Marshall Road, North 62 degrees 32 minutes 15 seconds East 102.72 feet to a point; thence still along the title line in the bed of Marshall Road, North 59 degrees 47 minutes 15 seconds East 68.06 feet to a point; thence leaving the bed of Marshall Road and e xtending on a course of South 1 degree 51 minutes 53 seconds West crossing said 10 feet wide alley, 187.06 feet to a monument; thence South 18 degrees 41 minutes 45 seconds East 159.72 feet to a stone; thence South 60 degrees 17 minutes 3 seconds East 95.08 feet to a stone; thence North 33 degrees 56 minutes 52 seconds East 45.89 feet to a marble stone; thence South 73 degrees 32 minutes 1 second East 52.66 feet to a spike in a tree; thence South 55 degrees 19 minutes 25 seconds East 166.46 feet to a concrete monument; thence South 42 degrees 57 minutes 45 seconds West 80 feet to a pipe; thence South 47 degrees 2 minutes 15 seconds East 101.17 feet to a point on the Northwest side of Kent Road; thence along the side of the cul-de-sac at the end of Kent Road, the two following courses and distances (1) South 87 degrees 37 minutes 37 seconds West 35.86 feet to a spike (2) on the arc of a circle curving to the left with a radius of 30 feet the arc distance of 112.07 feet the chord of said arc bearing South 19 degrees 23 minutes 35 seconds East and distance being 57.37 feet to a pipe; thence South 53 degrees 35 minutes 18 seconds West 36.94 feet to a pipe; thence North 36 degrees 24 minutes 12 seconds West 65 feet to a pipe; thence South 53 degrees 35 minutes 18 seconds West 30 feet to a pipe; thence North 36 degrees 24 minutes 12 seconds West 125 feet to a pipe; thence South 53 degrees 35 minutes 18 seconds West 250 feet to a pipe on the Northeast side of Sixty Ninth Street; thence along the Northeast side thereof, North 36 degrees 24 minutes 12 seconds West 451.31 feet to the first mentioned point and place of beginning.

TOGETHER with and subject to the free and common use of the aforesaid 10 feet wide driveway which extends Eastward and Westward into and from Sixty Ninth as and for a driveway and passageway at all times hereafter, forever in common with the other owners, tenants and occupiers of the premises adjoining thereof.

SUBJECT to the proportionate part of the expense of maintaining and keeping the same in good order and repair.

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Tax ID / Parcel No. 16-01-01572-01

AS SURVEYED DESCRIPTION:

METES AND BOUNDS DESCRIPTION

FOLIO #16-01-00907-00

PREMISES “A”

LANDS NOW OR FORMERLY

UPPER DARBY STUART, INC.

UPPER DARBY TOWNSHIP, DELAWARE COUNTY

COMMONWEALTH OF PENNSYLVANIA

BEGINNING AT A POINT AT THE PROPOSED CENTER LINE OF HEATHER ROAD (40 FOOT WIDE RIGHT-OF-WAY, UNOPENED) AT THE INTERSECTION OF THE DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A”, LANDS NOW OR FORMERLY UPPER DARBY STUART, INC. AND FOLIO #16-01-00906-00, LANDS NOW OR FORMERLY GULER AND GULER SAID POINT BEING DISTANT 120.13 FEET ON A COURSE OF SOUTH 26 DEGREES 08 MINUTES 15 SECONDS WEST FROM THE INTERSECTION OF THE CENTER LINE OF HEATHER ROAD AND THE CENTER LINE OF MARSHALL ROAD (60 FOOD WIDE RIGHT-OF-WAY) AND FROM SAID POINT OF BEGINNING RUNNING, THENCE;

1.ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A” AND FOLIO #16-01-00906-00, SOUTH 26 DEGREES 08 MINUTES 15 SECONDS WEST, A DISTANCE OF 208.40 FEET TO A POINT, THENCE;

2.ALONG THE COMMON DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A”; FOLIO #16-01-01572-01, PREMISES “B”, LANDS NOW OR FORMERLY UPPER DARBY STUART, LLC AND FOLIO #16-01-01572-04, LANDS NOW OR FORMERLY GULER, NORTH 73 DEGREES 32 MINUTES 01 SECONDS WEST, A DISTANCE OF 76.61 FEET TO A POINT, THENCE;

THE FOLLOWING FOUR (4) COURSES AND DISTANCES ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A” AND FOLIO #16-01- 01572-01, PREMISES “B”:

3.SOUTH 33 DEGREES 56 MINUTES 52 SECONDS WEST, A DISTANCE OF 45.89 FEET TO A POINT, THENCE;

4.NORTH 60 DEGREES 17 MINUTES 03 SECONDS WEST, A DISTANCE OF 95.59 FEET TO AN ANGLE POINT, THENCE;

5.NORTH 18 DEGREES 41 MINUTES 45 SECONDS WEST, A DISTANCE OF 159.16 FEET TO AN ANGLE POINT, THENCE;

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6.NORTH 01 DEGREES 51 MINUTES 53 SECONDS EAST, A DISTANCE OF 44.50 FEET TO A P.K. NAIL, THENCE;

7.ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A” FOLIO #16-01-00922-00, LANDS NOW OR FORMERLY FELICE, NORTH 59 DEGREES 30 MINUTES 15 SECONDS EAST, A DISTANCE OF 33.53 FEET TO A POINT OF CURVATURE, THENCE;

8.ALONG THE COMMON DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A”; FOLIO #16-01-00922-00; FOLIO #16-01-00921-00, LANDS NOW OR FORMERLY AMBROSE; FOLIO #16-01-00920-00, LANDS NOW OR FORMERLY JEFFKIN; FOLIO #16-01-00919-00, LANDS NOW OR FORMERLY OGUNKORODE; FOLIO #16-01-00918-00, LANDS NOW OR FORMERLY GERMICHALOS; FOLIO #16-01-00917-00, LANDS NOW OR FORMERLY SINGH; FOLIO #16-01-00916-00, LANDS NOW OR FORMERLY JOHNSON; FOLIO #16-01- 00915-00, LANDS NOW OR FORMERLY JOHNSON AND FOLIO #16-01-00914-00, LANDS NOW OR FORMERLY AHMED, ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT, HAVING A RADIUS OF 160.00 FEET, A CENTRAL ANGLE OF 54 DEGREES 00 MINUTES 05 SECONDS, AN ARC LENGTH OF 150.80 FEET, A CHORD BEARING NORTH 86 DEGREES 30 MINUTES 13 SECONDS EAST AND A CHORD DISTANCE OF 145.28 FEET TO A POINT OF TANGENCY, THENCE;

9.ALONG THE COMMON DIVIDING LINE BETWEEN FOLIO #16-01-00907-00, PREMISES “A”; FOLIO #16-01-00914-00; FOLIO #16-01-00913-00, LANDS NOW OR FORMERLY ANAM AND AHMED; FOLIO #16-01-00912-00, LANDS NOW OR FORMERLY DAVIS; FOLIO #16-01-00911-00, LANDS NOW OR FORMERLY SCOTT; FOLIO #16-01-00910-00, LANDS NOW OR FORMERLY IQBAL; FOLIO #16-01-00909-00, LANDS NOW OR FORMERLY HOSSAIN; FOLIO #16-01-00908- 00, LANDS NOW OR FORMERLY GULER AND A LOT WHERE OWNER INFORMATION IS NOT AVAILABLE, SOUTH 66 DEGREES 29 MINUTES 45 SECONDS EAST, A DISTANCE OF 163.13 FEET TO THE POINT AND PLACE OF BEGINNING.

CONTAINING 62,068 SQUARE FEET OR 1.425 ACRES

35

METES AND BOUNDS DESCRIPTION

FOLIO #16-01-01572-01

PREMISES “B”

LANDS NOW OR FORMERLY

UPPER DARBY STUART, LLC

UPPER DARBY TOWNSHIP, DELAWARE COUNTY

BEGINNING AT A POINT ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF SIXTY-NINTH STREET (70 FOOT WIDE RIGHT-OF-WAY) AT ITS INTERSECTION WITH THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-0 1, PREMISES “B”, LANDS NOW OR FORMERLY UPPER DARBY STUART, LLC. AND FOLIO #16-01-00924-00, LANDS NOW OR FORMERLY DAVIDART CORP. SAID POINT BEING DISTANT 90.48 FEET ON A COURSE OF SOUTH 36 DEGREES 24 MINUTES 12 SECONDS EAST FROM A POINT CONNECTING THE NORTHEASTERLY RIGHT-OF-WAY LINE OF SIXTY-NINTH STREET WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF MARSHALL ROAD (60 FOOT WIDE RIGHT-OF-WAY) AND FROM SAID POINT OF BEGINNING RUNNING, THENCE;

THE FOLLOWING TWO (2) COURSES AND DISTANCES ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B” AND FOLIO #16-01-00924-00:

1.NORTH 59 DEGREES 30 MINUTES 15 SECONDS EAST, A DISTANCE OF 239.12 FEET TO A REBAR, THENCE;

2.NORTH 30 DEGREES 29 MINUTES 45 SECONDS WEST, A DISTANCE OF 126.27 FEET TO A P.K. NAIL ON THE SOUTHERLY RIGHT-OF-WAY LINE OF MARSHALL ROAD, THENCE;

THE FOLLOWING TWO (2) COURSES AND DISTANCES ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF MARSHALL ROAD:

3.NORTH 62 DEGREES 32 MINUTES 15 SECONDS EAST, A DISTANCE OF 102.72 FEET TO A P.K. NAIL, THENCE;

4.NORTH 59 DEGREES 47 MINUTES 15 SECONDS EAST, A DISTANCE OF 68.06 FEET TO A P.K. NAIL, THENCE;

5. ALONG THE COMMON DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B”; FOLIO #16-01-00922-00, LANDS NOW OR FORMERLY FELICE AND FOLIO #16-01-00907-00, PREMISES “A”, LANDS NOW OR FORMERLY UPPER DARBY STUART, INC., SOUTH 01 DEGREES 51 MINUTES 53 SECONDS WEST A DISTANCE OF 187.06 FEET TO AN ANGLE POINT, THENCE;

THE FOLLOWING FOUR (4) COURSES AND DISTANCES ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01 PREMISES “B” AND FOLIO #16-01- 00907-00, PREMISES “A”:

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6.SOUTH 18 DEGREES 41 MINUTES 45 SECONDS EAST, A DISTANCE OF 159.16 FEET TO AN ANGLE POINT, THENCE;

7.SOUTH 60 DEGREES 17 MINUTES 03 SECONDS EAST, A DISTANCE OF 95.59 FEET TO A POINT, THENCE;

8.NORTH 33 DEGREES 56 MINUTES 52 SECONDS EAST, A DISTANCE OF 45.89 FEET TO A POINT, THENCE;

9.SOUTH 73 DEGREES 32 MINUTES 01 SECONDS EAST, A DISTANCE OF 52.66 FEET TO A REBAR, THENCE;

10.ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B” AND FOLIO #16-01-01572-04, LANDS NOW OR FORMERLY GULER, SOUTH 55 DEGREES 19 MINUTES 25 SECONDS EAST, A DISTANCE OF 166.46 FEET TO A POINT, THENCE;

11.ALONG THE COMMON DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B”; FOLIO #16-01-00746-00, LANDS NOW OR FORMERLY GULER AND FOLIO #16-01-00747-00, LANDS NOW OR FORMERLY SUKUEN, SOUTH 42 DEGREES 57 MINUTES 45 SECONDS WEST, A DISTANCE OF 80.00 FEET TO A POINT, THENCE;

12.ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B” AND FOLIO #16-01-00747-00, SOUTH 47 DEGREES 02 MINUTES 15 SECONDS EAST, A DISTANCE OF 101.17 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF KENT ROAD (VARIABLE WIDTH RIGHT-OF-WAY), THENCE;

13.ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF KENT ROAD, SOUTH 87 DEGREES 37 MINUTES 37 SECONDS WEST, A DISTANCE OF 35.86 FEET TO A POINT CONNECTING THE NORTHERLY RIGHT-OF-WAY LINE OF KENT ROAD WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF KENT ROAD, THENCE;

14.ALONG THE ARC OF A TANGENT CIRCLE CURVING TO THE LEFT HAVING A RADIUS OF 30.00 FEET, A CENTRAL ANGLE OF 214 DEGREES 02 MINUTES 24 SECONDS, AN ARC LENGTH OF 112.07 FEET, A CHORD BEARING SOUTH 19 DEGREES 23 MINUTES 35 SECONDS EAST AND A CHORD DISTANCE OF 57.37 FEET TO A POINT OF CUSP, THENCE;

THE FOLLOWING THREE (3) COURSES AND DISTANCES ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B” AND FOLIO #16-01- 01572-02, LANDS NOW OR FORMERLY KR 69TH STREET:

15.SOUTH 53 DEGREES 35 MINUTES 18 SECONDS WEST, A DISTANCE OF 36.94 FEET TO A P.K. NAIL, THENCE;

16.NORTH 36 DEGREES 24 MINUTES 12 SECONDS WEST, A DISTANCE OF 65.00 FEET TO A PIPE, THENCE;

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17.SOUTH 53 DEGREES 35 MINUTES 18 SECONDS WEST, A DISTANCE OF 30.00 FEET TO A P.K. NAIL, THENCE;

THE FOLLOWING TWO COURSES AND DISTANCES ALONG THE DIVIDING LINE BETWEEN FOLIO #16-01-01572-01, PREMISES “B” AND FOLIO #16-01-01572-05, LANDS NOW OR FORMERLY K & C REAL ESTATE HOLDINGS COMPANY:

18.NORTH 36 DEGREES 24 MINUTES 12 SECONDS WEST, A DISTANCE OF 125.00 FEET TO A P.K. NAIL, THENCE;

19.SOUTH 53 DEGREES 35 MINUTES 18 SECONDS WEST, A DISTANCE OF 250.00 FEET TO A POINT ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF SIXTY-NINTH STREET, THENCE;

20.ALONG THE NORTHEASTERLY RIGHT-OF-WAY LINE OF SIXTY-NINTH STREET, NORTH 36 DEGREES 24 MINUTES 12 SECONDS WEST, A DISTANCE OF 451.26 FEET TO THE POINT AND PLACE OF BEGINNING.

CONTAINING 172,289 SQUARE FEET OR 3.955 ACRES

Being part of the same premises which Pathmark Stores, Inc., a Delaware Corporation by Deed dated 9-18-98 and recorded 10-27-98 in Delaware County in Volume 1787 Page 64 conveyed unto Upper Darby Stuart, Inc., a Delaware Corporation, in fee.

As to Premises “B”

BEING the same premises which Upper Darby Stuart, Inc., a Delaware Corporation, by Indenture bearing date 2/15/2000 and recorded 3/14/2000 in the Office of the Recorder of Deeds, in and for the County of Delaware in Volume 1991 page 213 etc., granted and conveyed unto Upper Darby Stuart, LLC, a Limited Liability Company, in fee.

38

EXHIBIT A-2

Legal Description

130 White Horse Pike

Lawnside, NJ

ALL that certain tract, lot and parcel of land lying and being in the Borough of Lawnside, County of Camden and State of New Jersey, being more particularly described as follows:

BEGINNING at a point on the northerly line of Gloucester Pike a.k.a. CR 659, said point being at the southerly end of the property line connecting the said line of the Gloucester Pike and the southeasterly line of White Horse Pike a.k.a. NJSH Rt 30 and continuing; thence

(1)Along Gloucester Pike, North 89 degrees 56 minutes 00 seconds West distance of 690.56 feet to a point; thence

(2)North 00 degrees 04 minutes 28 seconds West distance of 123.11 feet to a point and corner of an existing building; thence

(3)Along said building, South 89 degrees 56 minutes 44 seconds East a distance of 19.25 feet to a point and corner of the aforementioned building; thence

(4)Along said building, North 00 degrees 03 minutes 16 seconds East a distance of 84.09 feet to a point and corner of the aforementioned building; thence

(5)Along said building, South 89 degrees 56 minutes 00 seconds East a distance of 4.65 feet to a point and corner of the aforementioned building; thence

(6)North 00 degrees 21 minutes 02 seconds East a distance of 253. 12 feet to a point; thence

(7)North 50 degrees 17 minutes 40 seconds East a distance of 222.76 feet to a point on the southwesterly line of White Horse Pike; thence

(8)Along the White Horse Pike, South 39 degrees 42 minutes 20 seconds East a distance of 468.40 feet to a point; thence

(9)South 50 degrees 17 Minutes 40 seconds West a distance of 138.00 feet to a point; thence

(10)South 39 degrees 42 minutes 20 seconds East a distance of 150.00 feet to a point; thence

(11)North 50 degrees 17 minutes 40 seconds East a distance of 150.00 feet to a point on the southwesterly line of White Horse Pike; thence

(12)Along the White Horse Pike, South 39 degrees 42 minutes 20 seconds East a distance of 150 feet to a point; thence

39

(13) South 17 degrees 05 minutes 10 seconds West a distance of 21 .46 feet to the point and place of BEGINNING.

Being further described as follows:

BEGINNING at a P.K. nail & washer set in the northerly line of Gloucester Pike (A.K.A. Browning Road, Sandy Lane, County Route 659-Variable width right-of-way), said point of beginning being located on the bearing and distance of North 89 Degrees 36 minutes 00 seconds, a distance of 72.60 feet from the original point of beginning for this tract as previously set forth in Deed Book 4657, Page 154 and from said beginning point running; thence

1.Along the northerly line of said Gloucester Pike, North 89 degrees 56 minutes 00 seconds West, a distance of 617.96 feet to a P.K. nail & washer set in line of the same; thence

2.Along the dividing line between Lot 5 & Lot 4.02, Block 1401, following along or near that portion of a partition wall, North 00 degrees 04 minutes 28 seconds West, a distance of 123.71 feet to a point; thence

3.Along or near the same, South 89 degrees 56 minutes 44 seconds East, a distance of 19.25 feet to a point; thence

4.Along or near the same, North 00 degrees 03 minutes 16 seconds East, a distance of 84.09 feet to a point; thence

5.Along or near the northerly face of a masonry building, South 89 degrees 56 minutes 00 seconds East, a distance of 4.65 feet to a point; thence

6.Along the dividing line between Lot 5 & Lot 4.02, Block 1401, North 00 degrees 21 minutes 02 seconds East, a distance of 253.12 feet to a P.K. nail & washer set; thence

7.Along the dividing line between Lot 5 & Lot 4, Block 1401, North 50 degrees 17 minutes 40 seconds East, a distance of 222.76 feet to a rebar with cap set; thence

8.Along the southwesterly line of White Horse Pike (A.K.A. New Jersey State Highway U.S. Route 30, variable width right-of-way), South 39 degrees 42 minutes 20 seconds East, a distance of 468.40 feet to a point; thence

9.Along the dividing line between Lot 5 & Lot 6, Block 1401, South 50 degrees 17 minutes 40 seconds West a distance of 138.00 feet to a P.K. nail & washer set; thence

10.Along the same, South 39 degrees 42 minutes 20 seconds East, a distance of 150.00 feet to a P.K. nail & washer set; thence

11. Along the same, North 50 degrees 17 minutes 40 seconds East, a distance of 150.00 to a P.K. nail & washer set; thence

40

12.Along the southwesterly line of the aforementioned White Horse Pike, South 39 degrees 42 minutes 20 seconds East, a distance of 91.44 feet to a P.K. nail & washer set at a point of curvature in the same; thence

13.Along the same, on a curve to the right, having a radius of 80.00 feet turning a central angle of 25 degrees 35 minutes 24 seconds, an arc length of 35.73 feet, the cord of which bears South 26 degrees 54 minutes 38 seconds East, a chord distance of 35.43 feet to a P.K. nail & washer set at a point of compound curvature in the same; thence

14.Along the same, on a curve to the right, having a radius of 20.00 feet, turning a central angle of 85 degrees 39 minutes 58 seconds an arc length of 29.90 feet, the chord of which bears South 28 degrees 43 minutes 03 seconds West, a chord distance of 27.19 feet to a P.K. nail & washer set at a point of compound curvature in the same; thence

15.Still running along the same, on a curve to the right, having a radius of 140.00 feet turning a central angle of 18 degrees 30 minutes 58 seconds, an arc length of 45.24 feet, the chord of which bears South 80 degrees 48 minutes 31 seconds West, a chord distance of 45.05 feet to a P.K. nail & washer set at a point of tangency in the same; thence

16. Along the same, South 00 degrees 03 minutes 04 seconds East, a distance of 2.83 feet to the point and place of beginning.

Together with the benefit and burden of:

(a)that certain Party Wall Agreement as contained in Deed Book 3117, Page 1150 dated July 9, 1969 and recorded July 15, 1969 between Supermarkets General Corporation and Bridge Stuart, Inc.

(b)Terms and provisions of agreement between Bridge Stuart Inc., Jersey Stuart, Inc., John Hancock Mutual Life Insurance, Connecticut General Life Insurance and Supermarkets General Corporation dated August 27, 1970 and recorded September 1, 1970 in Deed Book 3164, Page 1194, Modification of Cross- Easement Agreement between Bridge Stuart Inc., Jersey Stuart, Inc., John Hancock Mutual Life Insurance, Connecticut General Life Insurance and Supermarkets General Corporation dated December 3, 1980 and recorded August 5, 1981 in Deed Book 3791, Page&nb sp;418 and Amendment of Cross-Easement Agreement by Plainbridge, Inc. dated August 10, 2000 and recorded in Deed Book 5113, Page 168.

For Information Only:

The land referred to herein is commonly known as Lot(s) 5, Block 1401 on the Tax Map of the Borough of Lawnside, in the County of Camden.

41

EXHIBIT A-3

Legal Description

4055 Merrick Road

Seaford, NY

SECTION 57 BLOCK G LOT(s) 323 ON THE TAX MAP OF NASSAU COUNTY

ALL that certain plot, piece or parcel of land, situate, lying and being at Seaford, Town of Hempstead, County of Nassau and State of New York, bounded and described as follows:

BEGINNING at a point lying in the easterly side of Washington Avenue, distant 82.03 feet northerly from the corner formed by the intersection of the easterly side of Washington Avenue with the northerly side of Merrick Road, as widened;

RUNNING THENCE along the easterly side of Washington Avenue, North 6 degrees 30 minutes 00 seconds East for a distance of 204.12 feet to land formerly of Graef;

THENCE along land formerly of Graef and formerly of J.C. Baylis, the following four courses and distances:

1.South 84 degrees 31 minutes 50 seconds East for 316.39 feet.

2.South 84 degrees 37 minutes 10 seconds East for 50.04 feet.

3.South 84 degrees 19 minutes 00 seconds East for 45.00 feet.

4.South 84 degrees 19 minutes 30 seconds East for 139.44 feet to land of the County of Nassau;

THENCE along land of the County of Nassau, South 2 degrees 51 minutes 45 seconds West for a distance of 224.20 feet to the northerly side of Merrick Road as widened;

THENCE along the northerly side of Merrick Road as widened, South 88 degrees 04 minutes 36 seconds West for a distance of 214.58 feet to a point;

THENCE still along the northerly side of Merrick Road as widened, South 87 degrees 32 minutes 33 seconds West for a distance of 128.43 feet to a point;

THENCE still along the northerly side of Merrick Road as widened, along the arc of a curve bearing to the left with a radius of 1882.00 feet for a distance of 81.61 feet to a point being 121.53 feet easterly from the corner formed by the intersection of the easterly side of Washington Avenue with the northerly side of Merrick Road, as widened;

THENCE North 01 degree 45 minutes 00 seconds West for a distance of 80.22 feet to a point;

THENCE South 88 degrees 15 minutes 00 seconds West for a distance of 26.10 feet to a point;

THENCE North 06 degrees 44 minutes 20 seconds East for a distance of 3.17 feet to a point;

THENCE North 84 degrees 53 minutes 20 seconds West for a distance of 108.29 feet to the easterly side of Washington Avenue and the point or place of BEGINNING.

42

EXHIBIT A-4

Legal Description

1764 Grand Avenue

Baldwin, NY

SECTION 36 BLOCK 409 LOT(s) 580, 592-595, 597, 598, 598 and 600 ON THE TAX MAP OF NASSAU COUNTY

ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate lying and being at Baldwin, in the Town of Hempstead, County of Nassau, and the State of New York, bounded and described as follows:

BEGINNING at a point on the westerly side of Grand Avenue, distant 115.04 feet southerly from the corner formed by the intersection of the westerly side of Grand Avenue with the southerly side of Stowe Avenue;

RUNNING THENCE South 12 degrees 19 minutes 10 seconds East along the westerly side of Grand Avenue, 172.96 feet;

RUNNING THENCE South 78 degrees 54 minutes West, 145.29 feet;

RUNNING THENCE South 12 degrees 30 minutes East, 45.71 feet;

RUNNING THENCE North 80 degrees 32 minutes East 145.29 feet to the westerly side of Grand Avenue;

RUNNING THENCE South 12 degrees 19 minutes 10 seconds East along the westerly side of Grand Avenue, 214.81 feet;

RUNNING THENCE South 82 degrees 10 minutes West, 242.74 feet;

RUNNING THENCE South 12 degrees 19 minutes 10 seconds East, 111.16 feet;

RUNNING THENCE North 30 degrees 18 minutes West, 101.14 feet;

RUNNING THENCE South 50 degrees 33 minutes West, 61.34 feet;

RUNNING THENCE South 58 degrees 36 minutes West, 76.98 feet to land of the County of Nassau;

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RUNNING THENCE along said land of the County of Nassau the following four courses and distances:

1.North 23 degrees 17 minutes West, 119.76 feet;

2.North 12 degrees 26 minutes 20 seconds West, 39.96 feet;

3.North 1 degree 39 minutes 50 seconds West, 105.90;

4.North 22 degrees 13 minutes 53 seconds West, 231.13 feet;

RUNNING THENCE North 77 degrees 56 minutes East, 443.63 feet to the westerly side of Grand Avenue, at the point or place of BEGINNING.

44

EXHIBIT A-5

Legal Description

92-10 Atlantic Avenue

Queens, NY

BLOCK 9027 LOT 11 AND BLOCK 9028 LOT 1 ON THE TAX MAP OF QUEENS COUNTY

Parcel 1 and 2 (Composite Description)

All that certain plot, piece or parcel of land with the buildings or improvements thereon, erected, situate, lying and being in the Borough and County of Queens, City and State of New York, bounded and described as follows:

BEGINNING at the corner formed by the intersection of the northwesterly line of 95th Avenue (a/k/a University Place, f/k/a Chichester Avenue) (60 feet wide) with the southwesterly line of 93rd Street (a/k/a Clinton Place, f/k/a Woodhaven Avenue) (60 feet wide) and from said point of BEGINNING;

RUNNING THENCE along said northwesterly line of 95th Avenue, South 40 degrees 26 minutes 58 seconds West, a distance of 299.96 feet to a point;

THENCE along the dividing line between Lot 1, Block 9028 and Lot 51 (n/f reputed owner 7 Horizon Corp.), Block 9027, the following three (3) courses and distances:

1.NORTH 49 degrees 33 minutes 02 seconds West, a distance of 74.03 feet to a point;

2.THENCE South 40 degrees 26 minutes 58 seconds West, a distance of 3.85 feet to a point;

3. THENCE North 49 degrees 33 minute 02 seconds West, a distance of 24.97 feet to a point;

THENCE along the dividing line between Lot 11, Lot 51 and Lot 65 (n/f reputed owner 7 Horizon Corp.), Block 9027, South 40 degrees 26 minutes 58 seconds West, a distance of 466.97 feet to a point;

THENCE along the dividing line between Lot 11 and Lot 80 (n/f reputed owner Realex Development Corporation) and Lot 8 (n/f reputed owner Sutton Associates, Inc.), Block 9027, North 49 degrees 33 minutes 02 seconds West, a distance of 301.65 feet the southeasterly line of Atlantic Avenue (LIRR division, 120.01 feet wide);

THENCE along said southeasterly line of Atlantic Avenue, North 40 degrees 26 minutes 58 seconds East, a distance of 50.48 feet to a point;

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THENCE along the dividing line between Lot 11 and Lot 102 (n/f reputed owner Jack Sloane), Block 9027, the following five (5) courses and distances:

1.SOUTH 49 degrees 33 minutes 02 seconds East, a distance of 38.53 feet to a point;

2.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 19.75 feet to a point;

3.THENCE South 49 degrees 33 minutes 02 seconds East, a distance of 15.00 feet to a point;

4.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 45.00 feet to a point;

5.THENCE North 49 degrees 33 minutes 02 seconds West, a distance of 15.00 feet a point;

THENCE continuing along the dividing line between Lot 11, Lot 102 and Lot 12 (n/f reputed owner Plainbridge, Inc.,) Block 9027, North 40 degrees 26 minutes 58 seconds East, a distance of 314.94 feet to a point;

THENCE continuing along the dividing line between Lot 11 and Lot 12, Block 9027, the following four (4) courses and distances:

1.SOUTH 49 degrees 33 minutes 02 seconds East, a distance of 11.67 feet to a point;

2.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 14.00 feet to a point;

3.THENCE North 49 degrees 33 minutes 02 seconds West, a distance of 11.67 feet to a point;

4.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 66.31 feet to a point;

THENCE along the dividing line between Lot 1, Block 9028 and Lot 12, Block 9027, North 49 degrees 33 minutes 02 seconds West, a distance of 38.53 feet to a point of the aforementioned southeasterly line of Atlantic Avenue;

THENCE along said southeasterly line of Atlantic Avenue, North 40 degrees 26 minutes 58 seconds East, a distance of 260.30 feet to a point on the aforementioned southwesterly line of 93rd Street;

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THENCE along said southwesterly line of 93rd Street, South 49 degrees 33 minutes 02 seconds East, a distance of 400.65 feet to the corner aforesaid, the point or place of BEGINNING.

Together with the benefit and burden of that certain Declaration of Easement by Plainbridge, Inc. dated as of 1/11/1996 recorded 2/16/1996 in Reel 4278 Page 358. (affects Parcels 1 and 2)

47

BLOCK 9027, LOT(S) 51 AND 65 ON THE TAX MAP OF QUEENS COUNTY

Parcel 3

ALL that certain lot, piece or parcel of land, situate, lying and being at Woodhaven in the Fourth Ward of the Borough and County of Queens, City and State of New York, bounded and described as follows:

BEGINNING at a point on the northerly side of 95th Avenue, formerly University Place and Chichester Avenue distance 39.66 feet westerly from the corner formed by the intersection of the northerly side of 95th Avenue with the former westerly side of 92nd Street, discontinued and closed, (formerly Bigelow Avenue or Place);

RUNNING THENCE northerly at right angles to 95th Avenue, 74.03 feet;

THENCE westerly and parallel with 95th Avenue, 3.85 feet;

THENCE northerly at right angles to 95th Avenue, 24.97 feet;

THENCE westerly parallel with 95th Avenue, 466.97 feet;

THENCE southerly at right angles to 95th Avenue and part of the distance through a party wall, 99 feet to the northerly side of 95th Avenue;

THENCE easterly along said northerly side of 95th Avenue, 470.82 feet to the point or place of BEGINNING.

ALL the herein distances and dimensions being according to the United States Standard of Measurement.

Together with the benefit and burden of that certain Declaration of Easement by and between Supermarkets General Corporation and 7 Horizon Corp., dated as of August 7, 1987 and recorded November 17, 1987 in Reel 2494, Page 1380. (affects Parcels 1, 2 and a portion of Parcel 3)

48

EXHIBIT A-6

Legal Description

3901 Lancaster Pike

Wilmington, DE

Premises A:

ALL that certain lot, piece or parcel of land with the improvements erected thereon, situate in Christiana Hundred, New Castle County and State of Delaware, being more particularly bounded and described in accordance with that certain ALTA/ACSM Land Title Survey prepared by Van DeMark & Lynch, Inc. for Pathmark Stores, Inc. dated July 6, 1998, as revised (File No 333I6-L) as follows to wit:

BEGINNING at a monument found on the northeasterly side of the Lancaster Pike, (S.R. 48) said point being a corner for lands now or formerly of Pennmark Real Estate Group, L.L.C. (Deed Record 1848, Page 87), leased by Supermarkets General Corporation Deed Record X, Volume 110, Page 272, said northeasterly side of Lancaster Pike being distant northeasterly 53 feet therefrom at right angles thereto the centerline, said point Beginning distant the three following described courses and distances measured along the sides of the said Lancaster Pike from a corner of lands now or formerly of E.I. DuPont DeNemours & Company:

(1)North 62 degrees 13 minutes 60 seconds West, 242.24 feet to a point,

(2)North 27 degrees 08 minutes 30 seconds East, 5.63 feet to a set drill hole; and

(3)North 48 degrees 21 minutes 59 seconds West, 51.64 feet to the point of Beginning

THENCE from said point of Beginning and continuing along the various courses of the said northeast side of Lancaster Pike, the three following described courses and distances:

(1)North 62 degrees 13 minutes 50 seconds West, 197.03 feet to a found monument;

(2)North 70 degrees 23 minutes 36 seconds West, 53.52 feet to a found monument; and

(3)North 64 degrees 24 minutes 10 seconds West, 141.71 feet to a found monument in the line of lands said point being distant northeasterly 40.10 feet therefrom measured at right angles thereto the said centerline of the Lancaster Pike;

THENCE partially along the southeasterly line and along the northeasterly line of said lands now or formerly of Shellhorn & Hill Incorporated, the two following courses and distances: (1) North 18 degrees 18 minutes 30 seconds East, 106.42 feet to a set iron pin; and (2) North 62 degrees 13 minutes 50 seconds West 130.35 feet to a found monument in the line of lands now or formerly of Mother African UFCMP Church (Deed Record 1649, Page 27);

THENCE along lines of said lands now or formerly of Mother African UFCMP Church the three following described courses and distances;

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(1)North 28 degrees 21 minutes 00 seconds East, 40.00 feet to a found monument;

(2)North 62 degrees 13 minutes 50 seconds West, 3.02 feet to a found monument; and

(3)North 27 degrees 35 minutes 03 seconds East, 250.00 feet to a point, a corner for lands now or formerly of Bellevue Office Plaza as shown on a Record Land Development Plan recorded in the Office of the Recorder of Deeds in and for New Castle County on Microfilm No. 6686;

THENCE, partially along the southwesterly line of said lands now or formerly of Bellevue Office Plaza, South 62 degrees 13 minutes 50 seconds East, 538.93 feet to a set nail, a corner for said lands leased by Supermarkets General Corporation;

THENCE THEREBY, South 27 degrees 08 minutes 30 seconds West, 382.02 feet to a point on the said northeasterly side of Lancaster Pike and the point and place of Beginning.

Premises B:

ALL that certain parcel of land situate in Christiana Hundred, New Castle County and State of Delaware, being more particularly bounded and described as follows, to wit:

Beginning at a point on the northeasterly side of Lancaster Turnpike, at 70 feet wide, said point of Beginning being North 62 degrees 13 minutes 50 seconds West 242.24 feet measured along the said northeasterly side of Lancaster Turnpike from a corner common to lands of Commonwealth Trust Co., and lands now or formerly of E.I. DuPont deNemours & Co.; thence from said point of Beginning and along said northeasterly side of the Lancaster Turnpike, North 62 degrees 13 minutes 50 seconds West, 50.00 feet to a point, a corner for lands now or formerly of Lancaster Investments, Inc.; thence thereby North 27 degrees 08 minutes 30 seconds East 400.02 feet to a corner; thence continuing along the said line of lands of Lancaster Investments, Inc., South 62 degrees 13 minutes 50 seconds East 50.00 feet to a point; thence by a new line through lands of Commonwealth Trust Co. South 27 degrees 08 minutes 3 0 seconds West 400.02 feet to the first mentioned point and place of Beginning. Be the contents thereof what they may.

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EXHIBITS B-1 THROUGH B-6

SUPERMARKET LEASE FORMS

(Attached)

51

EXHIBIT B-1

LEASE FORM FOR UPPER DARBY, PA

52

KEY NO:

LEASE

BY AND BETWEEN

WE APP UPPER DARBY LLC,

LANDLORD

AND

PATHMARK STORES, INC.,

TENANT

DEMISED PREMISES

AT

421 SOUTH 69TH BOULEVARD, UPPER DARBY, PENNSYLVANIA

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TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	8
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	10
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	15
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	16
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	16
26.	DESTRUCTION	19
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

54

TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	27
45.	INVALIDITY OF CERTAIN PROVISIONS	27
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	28
51.	COUNTERPARTS	29
52.	INCORPORATION OF STATE LAW PROVISIONS	29

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LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP UPPER DARBY LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time to time, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.Exhibit A, Site Plan of the Demised Premises;

B.Exhibit B1, Legal Description of the Land;

C.Exhibit B2, Existing Encumbrances on Land

D.Exhibit C, Remedial Work

E.Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.Exhibit E, Memorandum of Lease;

G.Exhibit F, Form of Guaranty;

H.Exhibit G, Insurance Requirements;

I.Exhibit H, Percentage Rent;

J.Exhibit I, Local Law Addendum; and

K.Exhibit J, Confidentiality Agreement.

2.DEMISED PREMISES.

A. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) commonly known as 421 South 69th Boulevard, Upper Darby, Pennsylvania and more particularly described on Exhibit B1 and the buildings and other improvements now or hereafter erected on the Land together with the benefit of and subject to any and all easements, appurtenances, rights and privileges and other matters of record now or hereafter arising including those described in Exhibit B2. The land is currently

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improved by an existing building consisting of approximately 52,791 square feet of space (the “Building”), as more particularly shown on the Site Plan attached hereto as Exhibit A. The Building and any other buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and any Improvements are hereinafter collectively called the “Demised Premises.”

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.TERM.

A.The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 12 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal Notice in accordance with the foregoing, the

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Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginni ng of the next succeeding Renewal Period, the term of this Lease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	1,059,420.00	$	88,285.00
6-10	$	1,112,391.00	$	92,699.25
11-15	$	1,168,010.55	$	97,334.21
16-20	$	1,226,411.08	$	102,200.92
First Renewal Period
21-25	$	1,287,731.63	$	107,310.97
Second Renewal Period
26-30	$	1,352,118.21	$	112,676.52
Third Renewal Period
31-35	$	1,419,724.12	$	118,310.34
Fourth Renewal Period
36-40	$	1,490,710.33	$	124,225.86
Fifth Renewal Period
41-45	$	1,565,245.85	$	130,437.15
Sixth Renewal Period
46-50	$	1,643,508.14	$	136,959.01
Seventh Renewal Period
5 1-55	$	1,725,683.55	$	143,806.96

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Eighth Renewal Period
56-60	$	1,811,967.72	$	150,997.31
Ninth Renewal Period
61-65	$	1,902,566.11	$	158,547.18
Tenth Renewal Period
66-70	$	1,997,694.41	$	166,474.53

B.All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D. It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Premises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the great est extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall arise during the Term is

59

hereby expressly provided to survive the expiration of the Term or early termination of this Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or othe rwise affected by any law or regulation now or hereafter applicable to the Demised Premises or any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payment of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents.

E. If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

6.USE AND OCCUPANCY.

A. The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities Act of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor. Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Demised Premises contrary

60

to any law or in a manner likely to create any nuisance. It is intended that Tenant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to wh ich it has given its consent, and to take all other action, in order to effectuate the same, all at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land. Landlord further covenants and agrees, upon request of tenant, to convey without compensation therefor, insubstantial perimeter portions of the Land for highway or roadway purposes, to the state in which the demised premises are situate or any other municipal or governmental body, provided, however, that any such conveyance shall not constitute a taking (as defined in section 28 below) nor constitute grounds for tenant to terminate this Lease. Notwithsta nding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Premises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee as defined below).

C.The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

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7.TAXES.

A.Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes (hereinafter collectively referred to as “Taxes”), and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requ irements, orders, directives, rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined).

B.To the extent permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord’s name, if necessary, and shall execute any and all documents, instruments or certificates reasonably requested by Tenant to accomplish the foregoing.

C.Tenant shall be deemed to have complied with the covenants of this Lease if payment of Taxes shall have been made either within any period allowed by law or by the applicable governmental authority during which payment is permitted without penalty so long as the Taxes shall never become subject to a tax sale on the Demised Premises or subject Landlord to any civil or criminal liability. Tenant shall produce and exhibit to Landlord satisfactory evidence of payment prior to the expiration of any such period.

D.All Taxes shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which the Term shall be in effect. Notwithstanding anything to the contrary contained herein, if the Term hereof terminates prior to the date which would have been the expiration thereof but for the earlier termination, then Tenant shall pay those Taxes which would have been paid by Tenant to and including the term expiration date and this obligation shall expressly survive such termination.

E. So long as the requirements of Paragraph C of this Section are complied with, Tenant or its designees shall have the right to contest or review all Taxes by legal proceedings, or in such other manner as it may deem suitable. Tenant or its designees shall inform Landlord of any such proceedings and conduct such proceedings promptly at its own cost and expense, and free of any expenses to Landlord, and if necessary, in the name of and with the cooperation of Landlord (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant). Landlord shall execute all documents, instruments or certificates reasonably necessary and correct to accomplish the foregoing. Notwithstanding anything to the contrary or otherwise set forth herein, any such contest shall be subject to compliance with all applicable provisions of any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no material out of pocket cost to Landlord, in connection with such compliance).

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F.Landlord covenants and agrees that any refunds or rebates on account of Taxes paid by Tenant pursuant to the provisions of this Lease shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts that may be necessary to secure the payment of any such refund or rebate, directly to Tenant and/or will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Ten ant’s application (if legally required) for separate tax assessments for such portions of the Demised Premises as Tenant shall at any time, and from time to time, reasonably designate. Landlord hereby agrees, upon request of Tenant, to execute all documents, instruments or certificates as shall reasonably be required by Tenant (so long as the same impose no material obligations on Landlord or expose Landlord to any liability).

G.Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns, whether arising out of Landlord’s ownership of the Demised Premises, this Lease or otherwise; provided, however, that if at any time hereafter there is levied any tax on Landlord in lieu of real estate taxes based solely upon the ownership of real property, by property owners, in general, within the tax jurisdiction within which the Demised Premises are located, then such tax shall be considered to be an item of Taxes but for purposes of computing the amoun t of such tax payable by Tenant, the Demised Premises shall be deemed to be the sole real property owned by Landlord.

H. In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Real Estate Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be necessary so that there shall at all times be sufficient funds in escrow to pay such charges.

8.SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to includ e any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant’s personal property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports

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(including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the forego ing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in compliance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, window caulking, m aintenance of all gas, water, electric and other utility lines from public ways to the Demised Premises, and shall repair, maintain and replace all landscaping, roads, parking areas, and walkways appurtenant to the Demised Premises, and shall provide all snowplowing services thereto. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.INSURANCE.

A.Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.

C.Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

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D.Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policies of insurance required to be carried by Tenant.

E.Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F. If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12.REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, i f the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contest (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

13.ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with the making of Alterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on

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Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that results from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and th e addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Building.

14.ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.UTILITIES.

A.Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16.SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof, provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged and delivered by such Fee Mortgagee to Tenant. If the Fee Mor tgagee requires that this Lease have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fee Mortgagee an agreement acknowledging such priority.

17.TRADE FIXTURES.

A.All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the

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Demised Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to execute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord and any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment f or purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have any right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called the “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured P arty at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C.All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke, chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A. Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of

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the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Lease or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s consent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee unless (x) such transferee (1) operates at least five (5) other grocery stores and (2) has Tangible Net Worth” (as defined in Section 25 below) of at least One Hundred Million Dollars ($100,000,000) or (y) if such transferee does not meet the requirements of (1) and (2) then such transferee must be approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. If Tenant desires to so transfer this Lease to a person who does not meet the requirements of (1) and (2) in the preceding sentence, then Tenant shall give notice of such intended transfer to Landlord together with reasonable information on its grocery store business and its audited financial statements for the three most recent years showing the credit of the proposed transferee and the proposed terms of the transfer. Upon receiving such information Landlord shall have thirty (30) days to elect by written notice to Tenant to do one of the following (and any failure of Landlord to affirmatively elect one or the other shall be deemed to be an election by Landlord to consent to such transfer: (a) approve such transfer, (b) disapprove such transfer, or (c) terminate the Term of this Lease on any date which is no sooner than one-hundred twenty (120) days after such election notice and no later than one-hundred eighty (180) days after such election. If Landlord elects to terminate this Lease and thereafter within one-hundred twenty (120) days enters into a lease or other agreement with Tenant’s proposed transferee, any transfer payment that was to have been made to Tenant by such transferee as specifically disclosed in writing as such to Landlord in the proposed terms of the transfer furnished to Landlord as provided above shall be paid by Landlord to Tenant out of the first rent amounts received by Landlord from such transferee until the transfer payment is paid to Tenant in full. For purposes of the previous sentence, a “transfer payment” shall include proposed sublease income in excess of the rent under this Lease, and in such cases Landlord’s payment to Tenant shall be a liquidated amount equal to such excess rent at a discount rate of ten percent (10%).

C.If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlord in writing within thirty (30) days after receipt by the Original Tenant of Landlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if

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applicable) upon all of the same terms and conditions of this Lease as it may have been amended by agreement between Landlord and Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease a s theretofore amended, the Original Tenant shall not have the foregoing option.

D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test or the requirements of Section 1 8B are met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit  D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shal l reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee).

19. TITLE AND AUTHORITY.

A.Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, Landlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will not violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of i ts property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property, except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

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C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20.QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or i mplied.

21.UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed b y the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance of monetary obligations.

22. END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (3 0) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed

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Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.LANDLORD’S DEFAULT.

A.Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

B.In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay i n bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24. ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than such insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default

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or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tenant does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold the Demised Premises as if this Lease had not been made; and Tenant wai ves the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5) days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B. After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the c ommencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in

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possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as set forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D.Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (11/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E.The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any time the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater than the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accordance with generally accepted accounting principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s

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financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A.In the event of any damage or destruction by fire, the elements, or casualty (hereinafter called “Destruction”) to all or any part of the Building or any other Improvements in the Demised Premises, Tenant shall commence promptly, and with due diligence continue to restore same to substantially the same condition as existed immediately preceding the Destruction, except as otherwise provided in paragraph B of this Section. If the Destruction is partial, Tenant shall complete the restoration within two hundred seventy (270) days after the Destructions, subject to Unavoidable Delays. If the Destruction is total, Tenant shall complete the restoration within eighteen (18) months following the Destruction, subject to Unavoidable Delays. In no event shall Fixed Annual Rent or any Additional Rent abate on account of any Destruction.

B.If, as a result of any Destruction, fifty percent (50%) or more of the total floor area of the Building is damaged, destroyed or, in Tenant’s reasonable opinion rendered untenantable, during the last two (2) years of the Initial Term or during any Renewal Term (but this shall not apply at any other time), Tenant may elect to terminate this Lease by giving notice to Landlord of such election on or before the date that is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expi re and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant. In the event that Tenant elects to terminate this Lease as a result of the Destruction referenced above, Tenant shall cause all insurance proceeds to be paid to Landlord including business interruption insurance proceeds.

C. Except in the case of paragraph B of this Section, Insurance proceeds shall be deposited with a bank or trust company acceptable to Landlord and Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee shall be a bank, trust company, insurance company or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures. Any excess insurance proceeds shall be paid to Tenant at the conclusion of the restoration so long as Tenant is not then in default beyond any applicable cure period.

27. EMINENT DOMAIN.

A. In the event of an actual taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter called “Taking”) of the entire Building, then (1) this Lease and the Term shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of

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the Taking, and (2) any Fixed Annual Rent and Additional Rent shall be paid until such termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

B.(1) In the event of a Taking of twenty (20%) or more of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Building or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Demised Premises or Building on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of termination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

(2) If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be used by Tenant for restoration as hereinafter set forth and Tenant shall promptly commence and with due diligence continue to restore the portion of the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking. Tenant shall complete the restoration within two hundred seventy (270) days after the Destruction, subject to Unavoidable Delays. Taking proceeds shall be paid, held and disbursed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C.If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any dam ages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Landlord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

28.THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any

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person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcement of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30.ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one copy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

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32.BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services pro vided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and Landlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34.DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tena nt shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

35.ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost and expense, in its own name and/or in the name of Landlord, appear in any such proceeding. Landlord shall fully cooperate with Tenant (so long a s Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, make such appearances and furnish such information as may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

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36. ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4) the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5) the Toxic Substances Control Act, and any amendmen ts thereto and any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Land and Demised Premises prior to the Commencement Date. Tenant shall provide Landlord with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof. Landlord shall cooperate with Tenant (so long as Landlord’s cooperation does not involve inc urring obligations or liability or material expense to Landlord unreimbursed by Tenant) and provide such documents, affidavits and information as may be reasonably necessary for Tenant to comply with all Environmental Laws.

C. If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Land or Demised Premises or Hazardous Materials activities have taken place on the Land or Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitat ion all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date (and for these purposes, the loss indemnified shall include without limitation any costs of

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investigation or remediation, and any claim of personal injury or property damage to any person); provided, however, that such indemnity shall not include and Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties. The covenants of this Section shall survive the Term. Tenant shall from time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A.Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and inter ests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Lease. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empow ered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than $100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B.If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1)There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

(2)Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of

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defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mortgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

(5)If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgagee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7) Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such proceeding and be made a party to such proceeding, and the parties hereby consent to such intervention. Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

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Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38.INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employ ees, (“Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whole or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any person or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the cov enants of this Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense of all of the foregoing matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their manager s, members, directors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to levy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of their interest in the Demised Premises. In no event shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

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40.BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross sales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fisc al year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance with the terms of Exhibit J and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit J (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference, presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exercise of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

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46.CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party’s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or terminatio n notice shall not be deemed a waiver of such notice.

48.ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease (including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs and other usual costs of litigation of this type) incurred by such prevailing party.

49.WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50. MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and delivered by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord o r Tenant as well as invitees or independent contractors of

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Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s appro val or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notices, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence an d whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties or representations other than those expressly set forth in this Lease. Without limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, T enant from time to time will confirm such matters directly with such Fee Mortgagee.

51.COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit I attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control.

[SIGNATURE PAGE FOLLOWS]

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	IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective Date.
WITNESS:
		WE APP UPPER DARBY LLC, a Delaware limited liability company
Name:		By:
		Name:
		Title:
WITNESS:
		PATHMARK STORES, INC., a Delaware corporation
		By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Vice President and Secretary

Signature Page to Lease By and Between
WE APP UPPER DARBY LLC and PATHMARK STORES, INC.

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B1

LEGAL DESCRIPTION OF THE LAND

87

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1.Real estate taxes for the current and prior tax years which are hereafter assessed and are not yet due and payable.

2.Public and private rights in and to that portion of the premises lying in the bed of Heather Road and Marshall Road.

3.Easement and proportionate part of expense of maintenance of driveway on Northwest and alley on North (Premises A).

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: $450,000.00

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or (iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If any such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

C.4 Re-allocation of Reimbursement Cap. Upon the completion of the Remedial Work up to $20,000 of the Reimbursement Cap may be allocated to increase the “Reimbursement Cap” under any other lease between Tenant and any Affiliate of Landlord (except for that certain lease for space at 9210 Atlantic Avenue, Queens (Ozone Park), New York).

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                   2010, by and among                 , a                     , and its successors and assigns, having an office at                       (hereinafter together with its successors and assigns called “Mortgagee”), WE APP Upper Darby LLC, a Delaware limited liability company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November    2010 and amended by [ ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November     2010 was recorded on November     , 2010 in the         in Book                 , Page                       ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.Mortgagee hereby consents to and approves the Lease.

2.Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.Tenant certifies that the Lease is presently in full force and effect.

4.Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed given in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

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A.Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlo rd expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually re ceived by Mortgagee or if such prepayment shall have been expressly approved of in writing by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

94

direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Ad ministration of Tenant, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other addresses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

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WITNESS:	LANDLORD:
	WE APP UPPER DARBY LLC, a Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a Delaware corporation
Name:
	By:
	Name: Christopher W. McGarry
		Title: Vice President and Secretary

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MORTGAGEE ACKNOWLEDGMENT

STATE OF                             )

SS:

COUNTY OF                         )

ON THIS                         day of                         2010, before me, the subscriber, personally appeared                                     to me known, who being by me duly sworn, did depose and say that he is                         of                         the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this                         day of                         2010, before me, the undersigned notary public,personally appeared                            , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument andacknowledged the foregoing instrument to be his/her free act and deed as         &nbs p;               of WE APP Upper Darby LLC.

Notary Public

My Commission Expires:

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TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS                         day of                          , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

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EXHIBIT E

KEY NO:                                          

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP UPPER DARBY LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

1.For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 52,971 square feet of space (the “Buildin g), as more particularly shown on the site plan attached hereto as Exhibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the Commonwealth of Pennsylvania, and is in no way

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intended to change, alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP UPPER DARBY LLC, a Delaware limited liability company
Name:	By:
		Name:
		Title:
WITNESS:	PATHMARK STORES, INC., a Delaware corporation
Name: Craig H. Feldman	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

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EXHIBIT B

DEMISED PREMISES

102

EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

103

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this               day of November 2010, before me, the undersigned notary public, personally appeared                                   , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                          of WE APP Upper Darby LLC.

Notary Public

My Commission Expires:

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS             day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT F

UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 421 South 69th Boulevard, Upper Darby, Pennsylvania, with WE APP Upper Darby LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafter does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant&# 146;s performance as required by the terms of the Lease. Guarantor also waives, unless and until all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) the release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whe ther made with or without notice to Guarantor, including without limitation any impairment, modification, change, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

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bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guarantor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of a ll Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amount then due on this Guaranty.

4.Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with travel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to en force any of its rights, remedies or powers against or in respect of either or both Tenant or Guarantor (whether or not suit is instituted in connection with such efforts).

5. Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions thereof will constitute a default under or result in the creation of any l ien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

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6.This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, appr ovals and all other documents relating hereto may be reproduced by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease. Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involv ing any matter in any way arising out of or relating to this Guaranty or the Lease.

8. Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

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Landlord:

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303

Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

WE APP Upper Darby LLC

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November         , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation
	By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Senior Vice President

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EXHIBIT H

INSURANCE

This Exhibit G shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

1.INSURANCE.

A. Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied thr ough a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)Property insurance covering property damage and business interruption for the entire Demised Premises. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant’s property on the Demised Premises. Such insurance shall name Landlord and Fee Mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, terrorism, sprinkler leakage, flood, windstorm and earthquake, for t he full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co insurance clause of the policies of insurance with a deductible amount not to exceed $750,000. Such insurance shall include rent continuation coverage of no less than twelve (12) months. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any Fee Mortgage to which this Lease is subordinate so long as such holder and future holders of such Fee Mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

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(3)Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(4)Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

(3) claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

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EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark.

“Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $44,500,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise

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would be made at, in, on, about, from or with respect to the Premises, nor the amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior

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month to Landlord without demand, provided that if such amount exceeds the Percentage Rent that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calenda r year included in the Term.

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EXHIBIT I

LOCAL LAW ADDENDUM

(Attached)

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Lease Addendum (PA)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Upper Darby LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1.Construction Liens. Tenant acknowledges and agrees that any improvements, repairs, replacements or alterations contracted for by Tenant in or to the Demised Premises during the Term of the Lease are solely for the immediate use and benefit of Tenant and not Landlord. Tenant shall include the acknowledgement contained in the immediately preceding sentence in any contract made by Tenant for such work.

2.Surrender of Premises/Tenant Waiver. Tenant expressly waives and releases the benefit to Tenant of 68. P.S. Section 250.501, being Section 501 of that act, approved April 6, 1951, entitled “Landlord and Tenant Act of 1951”, as may be amended from time to time, requiring notice to quit upon the expiration of the Term of the Lease or at the expiration of any extension or renewal thereof, or upon any earlier termination of the Lease, as therein provided. Tenant covenants and agrees to vacate, remove from and deliver up and surrender the possession of the Demised Premises to Landlord upon the expiration of the Term or upon the expiration of any extension or renewal thereof, or upon any earlier termination of the Lease, as provided thereunder, without such notice, in the condition required in the Lease.

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EXHIBIT J

Confidentiality Agreement

(Attached)

116

CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of                        , 2010 (the “Effective Date”) by and between [TENANT], a                      , having an address at                                   (“Company”) and                       , a                    , having an address at                       (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently devel oped by Disclosee or its Representatives without reference to the Information.

3.In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in

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accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey, Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:

 [TENANT], a

By:

Name:

Title:

DISCLOSEE:

                                       , a

By:

Name:

Title:

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EXHIBIT B-2

LEASE FORM FOR LAWNSIDE, NJ

120

KEY NO:

LEASE

BY AND BETWEEN

WE APP LAWNSIDE LLC,
LANDLORD

AND

PATHMARK STORES, INC.,
TENANT

DEMISED PREMISES

AT

130 WHITE HORSE PIKE, LAWNSIDE, NEW JERSEY

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TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	8
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	10
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	15
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	16
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	17
26.	DESTRUCTION	19
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

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TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	27
45.	INVALIDITY OF CERTAIN PROVISIONS	27
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	28
51.	COUNTERPARTS	29
52.	INCORPORATION OF STATE LAW PROVISIONS	29

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LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP LAWNSIDE LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time to time, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.Exhibit A, Site Plan of the Demised Premises;

B.Exhibit B1, Legal Description of the Land;

C.Exhibit B2, Existing Encumbrances on Land

D.Exhibit C, Remedial Work

E.Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.Exhibit E, Memorandum of Lease;

G.Exhibit F, Form of Guaranty;

H.Exhibit G, Insurance Requirements;

I.Exhibit H, Percentage Rent;

J.Exhibit I, Local Law Addendum; and

K.Exhibit J, Confidentiality Agreement.

2.DEMISED PREMISES.

A. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) commonly known as 130 White Horse Pike, Lawnside, New Jersey and more particularly described on Exhibit B1 and the buildings and other improvements now or hereafter erected on the Land together with the benefit of and subject to any and all easements, appurtenances, rights and privileges and other matters of record now or hereafter arising including those described in Exhibit B2. The land is currently improved by an

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existing building consisting of approximately 55,760 square feet of space (the “Building”), as more particularly shown on the Site Plan attached hereto as Exhibit A. The Building and any other buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and any Improvements are hereinafter collectively called the “Demised Premises.”

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.TERM.

A.The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 12 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal Notice in accordance with the foregoing, the

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Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginni ng of the next succeeding Renewal Period, the term of this Lease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.               RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	574,885.00	$	47,907.08
6-10	$	603,629.25	$	50,302.44
11-15	$	633,810.71	$	52,817.56
16-20	$	665,501.25	$	55,458.44
First Renewal Period
21-25	$	698,776.31	$	58,231.36
Second Renewal Period
26-30	$	733,715.13	$	61,142.93
Third Renewal Period
31-35	$	770,400.88	$	64,200.07
Fourth Renewal Period
36-40	$	808,920.93	$	67,410.08
Fifth Renewal Period
41-45	$	849,366.97	$	70,780.58
Sixth Renewal Period
46-50	$	891,835.32	$	74,319.61
Seventh Renewal Period
5 1-55	$	936,427.09	$	78,035.59

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Eighth Renewal Period
56-60	$	983,248.44	$	81,937.37
Ninth Renewal Period
61-65	$	1,032,410.86	$	86,034.24
Tenth Renewal Period
66-70	$	1,084,031.41	$	90,335.95

B.              All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.              Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D. It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Premises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the great est extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall arise during the Term is hereby expressly provided to survive the expiration of the Term or early termination of this

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Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or otherwise affected by any law or regulation now or hereafter applicable to the Demised Premises o r any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payment of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents. For the avoidance of doubt, Tenant shall be responsible for all costs, expenses and obligations of Landlord in that certain cross-easement agreement listed on Exhibit B2 as item 7.

E. If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

6.             USE AND OCCUPANCY.

A. The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities Act of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor. Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons

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acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Demised Premises contrary to any law or in a manner likely to create any nuisance. It is intended that Tenant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.              Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to which it has given its consent, and to take all other action, in order to effectuate the same, al l at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land. Landlord further covenants and agrees, upon request of tenant, to convey without compensation therefor, insubstantial perimeter portions of the Land for highway or roadway purposes, to the state in which the demised premises are situate or any other municipal or governmental body, provided, however, that any such conveyance shall not constitute a taking (as defined in section 28 below) nor constitute grounds for tenant to terminate this Lease. Notwithstanding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Pr emises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee as defined below).

C.              The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operati ons, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

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7.            TAXES.

A.             Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes (hereinafter collectively referred to as “Taxes”), and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requirements, orders, directives, rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined).

B.              To the extent permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord’s name, if necessary, and shall execute any and all documents, instruments or certificates reasonably requested by Tenant to accomplish the foregoing.

C.              Tenant shall be deemed to have complied with the covenants of this Lease if payment of Taxes shall have been made either within any period allowed by law or by the applicable governmental authority during which payment is permitted without penalty so long as the Taxes shall never become subject to a tax sale on the Demised Premises or subject Landlord to any civil or criminal liability. Tenant shall produce and exhibit to Landlord satisfactory evidence of payment prior to the expiration of any such period.

D.              All Taxes shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which the Term shall be in effect. Notwithstanding anything to the contrary contained herein, if the Term hereof terminates prior to the date which would have been the expiration thereof but for the earlier termination, then Tenant shall pay those Taxes which would have been paid by Tenant to and including the term expiration date and this obligation shall expressly survive such termination.

E. So long as the requirements of Paragraph C of this Section are complied with, Tenant or its designees shall have the right to contest or review all Taxes by legal proceedings, or in such other manner as it may deem suitable. Tenant or its designees shall inform Landlord of any such proceedings and conduct such proceedings promptly at its own cost and expense, and free of any expenses to Landlord, and if necessary, in the name of and with the cooperation of Landlord (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant). Landlord shall execute all documents, instruments or certificates reasonably necessary and correct to accomplish the foregoing. Notwithstanding anything to the contrary or otherwise set forth herein, any such contest shall be subject to compliance with all applicable provisions of any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no material out of pocket cost to Landlord, in connection with such compliance).

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F.              Landlord covenants and agrees that any refunds or rebates on account of Taxes paid by Tenant pursuant to the provisions of this Lease shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts that may be necessary to secure the payment of any such refund or rebate, directly to Tenant and/or will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Tenant’s application (if legally required) for separate tax assessments for such portions of the Demised Premises as Tenant shall at any time, and from time to time, reasonably designate. Landlord hereby agrees, upon request of Tenant, to execute all documents, instruments or certificates as shall reasonably be required by Tenant (so long as the same impose no material obligations on Landlord or expose Landlord to any liability).

G.              Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns, whether arising out of Landlord’s ownership of the Demised Premises, this Lease or otherwise; provided, however, that if at any time hereafter there is levied any tax on Landlord in lieu of real estate taxes based solely upon the ownership of real property, by property owners, in general, within the tax jurisdiction within which the Demised Premises are located, then such tax shall be considered to be an item of Taxes but for purposes of computing the amount of such tax payable by Tenant, the Demised Premises shall be deemed to be the sole real prope rty owned by Landlord.

H. In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Real Estate Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be necessary so that there shall at all times be sufficient funds in escrow to pay such charges.

8.              SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to include any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant
46;s personal property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.              TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports

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(including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.            REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in comp liance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, window caulking, maintenance of all gas, water, electric and other utility lines from public ways to the Demised Premises, and shall repair, maintain and replace all landscapi ng, roads, parking areas, and walkways appurtenant to the Demised Premises, and shall provide all snowplowing services thereto. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.            INSURANCE.

A.             Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.              So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.< /font>

C.              Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

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D.              Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policie s of insurance required to be carried by Tenant.

E.              Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F. If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12.          REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, if the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contest (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

13.          ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with the making of A lterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on

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Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that results from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and th e addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Building.

14.            ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.            UTILITIES.

A.             Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.              Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16.            SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof, provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged and delivered by such Fee Mortgagee to Tenant. If the Fee Mortgagee requires that this Lease have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fe e Mortgagee an agreement acknowledging such priority.

17.            TRADE FIXTURES.

A.             All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the Demised Premises, regardless of the manner or mode of attachment, shall be and remain the

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property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to execute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord and any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment for purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have an y right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.              In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called the “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured Party at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C.              All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke, chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A. Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of

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the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Lease or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s consent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.              So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee unless (x) such transferee (1) operates at least five (5) other grocery stores and (2) has Tangible Net Worth” (as defined in Section 25 below) of at least One Hundred Million Dollars ($100,000,000) or (y) if such transferee does not meet the requirements of (1) and (2) then such transferee must be approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. If Tenant desires to so transfer this Lease to a person who does not meet the requirements of (1)& nbsp;and (2) in the preceding sentence, then Tenant shall give notice of such intended transfer to Landlord together with reasonable information on its grocery store business and its audited financial statements for the three most recent years showing the credit of the proposed transferee and the proposed terms of the transfer. Upon receiving such information Landlord shall have thirty (30) days to elect by written notice to Tenant to do one of the following (and any failure of Landlord to affirmatively elect one or the other shall be deemed to be an election by Landlord to consent to such transfer: (a) approve such transfer, (b) disapprove such transfer, or (c) terminate the Term of this Lease on any date which is no sooner than one-hundred twenty (120) days after such election notice and no later than one-hundred eighty (180) days after such election. If Landlord elects to terminate this Lease and thereafter within one-hundred twenty (120) days enters into a lease or other agreement wit h Tenant’s proposed transferee, any transfer payment that was to have been made to Tenant by such transferee as specifically disclosed in writing as such to Landlord in the proposed terms of the transfer furnished to Landlord as provided above shall be paid by Landlord to Tenant out of the first rent amounts received by Landlord from such transferee until the transfer payment is paid to Tenant in full. For purposes of the previous sentence, a “transfer payment” shall include proposed sublease income in excess of the rent under this Lease, and in such cases Landlord’s payment to Tenant shall be a liquidated amount equal to such excess rent at a discount rate of ten percent (10%).

C.              If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlor d in writing within thirty (30) days after receipt by the Original Tenant of Landlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if applicable) upon all of the same terms and conditions of this Lease as it may have been amended

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by agreement between Landlord and Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease as theretofore amended, the Original Tenant shall not have the foregoing option.

D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test or the requirements of Section 1 8B are met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit  D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shal l reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee). In the event that the existing gas station tenant on the Demised Premises request a recognition and attornment agreement Landlord will promptly provide same.

19. TITLE AND AUTHORITY.

A.             Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, Landlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.              Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will not violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of its property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property,

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except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20.            QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or implied.

21.            UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed by the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance o f monetary obligations.

22. END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (3 0) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy

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at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.         LANDLORD’S DEFAULT.

A.             Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

B.              In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24. ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than such insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.         TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written

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notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tenant does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold the Demised Premises as if this Lease had not been made; and Tenant waives the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5) days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B. After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the c ommencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C.              Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this

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Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as set forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D. Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (11/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E.              The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any tim e the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater t han the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accordance with generally accepted accounting

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principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A.            In the event of any damage or destruction by fire, the elements, or casualty (hereinafter called “Destruction”) to all or any part of the Building or any other Improvements in the Demised Premises, Tenant shall commence promptly, and with due diligence continue to restore same to substantially the same condition as existed immediately preceding the Destruction, except as otherwise provided in paragraph B of this Section. If the Destruction is partial, Tenant shall complete the restoration within two hundred seventy (270) days after the Destructions, subject to Unavoidable Delays. If the Destruction is total, Tenant shall complete the restoration within eighteen (18) months following the Destruction, subject to Unavoidable Delays. In no event shall Fixed Annual Rent or any Additional Rent abate on account of a ny Destruction.

B.            If, as a result of any Destruction, fifty percent (50%) or more of the total floor area of the Building is damaged, destroyed or, in Tenant’s reasonable opinion rendered untenantable, during the last two (2) years of the Initial Term or during any Renewal Term (but this shall not apply at any other time), Tenant may elect to terminate this Lease by giving notice to Landlord of such election on or before the date that is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expire and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant. In the event that Tenant elects to terminate this Lease as a result of the Destruction referenced above, Tenant shall cause all insurance proceeds to be paid to Landlord including business interruption insurance proceeds.

C. Except in the case of paragraph B of this Section, Insurance proceeds shall be deposited with a bank or trust company acceptable to Landlord and Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee shall be a bank, trust company, insurance company or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures. Any excess insurance proceeds shall be paid to Tenant at the conclusion of the restoration so long as Tenant is not then in default beyond any applicable cure period.

27. EMINENT DOMAIN.

A.            In the event of an actual taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter

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called “Taking”) of the entire Building, then (1) this Lease and the Term shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of the Taking, and (2) any Fixed Annual Rent and Additional Rent shall be paid until such termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

B.              (1) In the event of a Taking of twenty (20%) or more of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Building or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Demised Premises or Building on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of term ination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

(2) If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be used by Tenant for restoration as hereinafter set forth and Tenant shall promptly commence and with due diligence continue to restore the portion of the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking. Tenant shall complete the restoration within two hundred seventy (270) days after the Destruction, subject to Unavoidable Delays. Taking proceeds shall be paid, held and disbursed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C.              If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any damages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Land lord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

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28.            THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcemen t of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.            WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30. ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is i n default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one c opy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified

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mail, return receipt requested, postage prepaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

32.          BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.          LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services provided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and Landlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34.          DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tenant shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

35.          ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost and expense, in its own name and/or in the name of Landlord, appear in any such proceeding. Landlord shall fully cooperate with Tenant (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, m ake such appearances and furnish such information as

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may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

36. ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4) the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5) the Toxic Substances Control Act, and any amendments thereto and any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Land and Demised Premises prior to the Commencement Date. Tenant shall provide Landlord with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof. Landlord shall cooperate with Tenant (so long as Landlord’s cooperation does not involve inc urring obligations or liability or material expense to Landlord unreimbursed by Tenant) and provide such documents, affidavits and information as may be reasonably necessary for Tenant to comply with all Environmental Laws.

C. If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Land or Demised Premises or Hazardous Materials activities have taken place on the Land or Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitat ion all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to Hazardous Materials

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on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date (and for these purposes, the loss indemnified shall include without limitation any costs of investigation or remediation, and any claim of personal injury or property damage to any person); provided, however, that such indemnity shall not include and Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties. The covenants of this Section shall survive the Term. Tenant shall from time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A.Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and inter ests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Lease. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empow ered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than $100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B.If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1)There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

(2)Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold

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Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mo rtgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

(5)If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgagee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7) Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such proceeding and be made a party to such proceeding, and the parties hereby consent to such

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intervention.Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38.INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employees, ( “Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whole or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any person or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the covenants of thi s Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense of all of the foregoing matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their managers, members, d irectors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to levy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of their interest in the Demised Premises. In no event

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shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

40.BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross sales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fisc al year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance with the terms of Exhibit J and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit J (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference, presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exercise of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be

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affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

46.CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party’s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or terminatio n notice shall not be deemed a waiver of such notice.

48.ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease (including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs and other usual costs of litigation of this type) incurred by such prevailing party.

49.WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50. MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and delivered by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons

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acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord or Tenant as well as invitees or independent contractors of Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s approval or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notices, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties or representations other than those e xpressly set forth in this Lease. Without limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, Tenant from time to time will confirm such matters directly with such Fee Mortgagee.

51.COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit I attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control.

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[SIGNATURE PAGE FOLLOWS]

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	IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective Date.
WITNESS:
		WE APP LAWNSIDE LLC, a Delaware limited liability company
Name:		By:
		Name:
		Title:
WITNESS:
		PATHMARK STORES, INC., a Delaware corporation
		By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Vice President and Secretary

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Signature Page to Lease By and Between
WE APP LAWNSIDE LLC and PATHMARK STORES, INC.

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B1

LEGAL DESCRIPTION OF THE LAND

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1.Payment of all taxes, water, sewer, rents and assessments, if any, to and including the current installment of 2010, not yet due and payable.

2.Any unpaid municipal property taxes for the year 2010, not yet due and payable. NOTE: Taxes are paid to and including the third quarter of 2010.

3.Possible additional taxes and assessments assessed or levied under R.S.54:4-653.1 et seq, not yet due and payable.

4.Subject to restrictions as contained in Deed Book 2881/Page 207.

5.Subject to terms of party wall agreement as contained in Deed Book 3117/1150.

6.Grants and easements in Deed Book 3138/Page 565 to Public Service Electric and Gas Company.

7.Subject to terms and provisions of agreements as contained in Deed Book 3164/1194, Modification of Cross-Easement Agreement in Deed Book 3791/418, and Amendment of Cross-Easement Agreement in Deed Book 5113/168.

8.Subject to Real Property Waiver as contained in Deed Book 4242/Page 574.

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: N/A

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or

(iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If any such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

C.4 Re-allocation of Reimbursement Cap. Upon the completion of the Remedial Work up to $20,000 of the Reimbursement Cap may be allocated to increase the “Reimbursement Cap” under any other lease between Tenant and any Affiliate of Landlord (except for that certain lease for space at 9210 Atlantic Avenue, Queens (Ozone Park), New York).

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                                2010, by and among                          , a                          , and its successors and assigns, having an office at                                          &nb sp;      (hereinafter together with its successors and assigns called “Mortgagee”), WE APP Lawnside LLC, a Delaware limited liability company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                      evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November        2010 and amended by [ ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November        2010 was recorded on November       , 2010 in the                     in Book                         , Page                 ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.               Mortgagee hereby consents to and approves the Lease.

2.               Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.               Tenant certifies that the Lease is presently in full force and effect.

4.               Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.             Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.              The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed given in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.               Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.               If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

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A.             Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.              Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlord expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually received by Mortgagee or if such prepayment shall have been expressly approved of in writing by s uch new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.               If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.               Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

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direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.               Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Administration of Tenant, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other add resses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.             This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.           This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.           This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:
	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

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	WE APP LAWNSIDE LLC, a Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a Delaware corporation
Name:
	By:
	Name:	Christopher W. McGarry
	Title:	Vice President and Secretary

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WITNESS:	LANDLORD:
	MORTGAGEE ACKNOWLEDGMENT

STATE OF                         )

SS:

COUNTY OF                   )

ON THIS                       day of                              .2010, before me, the subscriber, personally appeared                   to me known, who being by me duly sworn, did depose and say that he is                  of                  the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrumen t is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this               day of                      2010, before me, the undersigned notary public, personally appeared                                , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                      of WE AP P Lawnside LLC.

Notary Public

My Commission Expires:

168

TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS                          day of                   , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

169

EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

170

EXHIBIT E
KEY NO:                                                        

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP LAWNSIDE LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

1.              For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 55,760 square feet of space (the “Building), as more particularly shown on the site plan attached hereto as Ex hibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.               The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.               Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.               The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.               This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the State of New Jersey, and is in no way intended to

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change, alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP LAWNSIDE LLC, a Delaware
	limited liability company
Name:	By:
		Name:
		Title:
WITNESS:	PATHMARK STORES, INC., a
	Delaware corporation
Name: Craig H. Feldman	By:
	Name:		Christopher W. McGarry
	Title:		Vice President and Secretary

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EXHIBIT B

DEMISED PREMISES

173

EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

174

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this                 day of November 2010, before me, the undersigned notary public, personally appeared                               , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                              of WE APP Lawnside LLC.

Notary Public

My Commission Expires:

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS           day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 130 White Horse Pike, Lawnside, New Jersey, with WE APP Lawnside LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.               Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafter does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.               Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant’s performance as required by the terms of the Lease. Guarantor also waives, unless and unti l all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) the release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whether made with or without notice to Guarantor, including without limitation any impairment, mod ification, change, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

176

EXHIBIT F

bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.               This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guarantor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of all Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amo unt then due on this Guaranty.

4.               Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with travel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to enforce any of its rights, remedies or powers against or in respect of either or both Tenant or G uarantor (whether or not suit is instituted in connection with such efforts).

5.             Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions th ereof will constitute a default under or result in the creation of any lien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

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6.               This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, approvals and all other documents relating hereto may be reproduced by photographic, microfilm, mic rofiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.               Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease. Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involving any matter in any way arising out of or relating to this Guaranty or the Lease.

8.               Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

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Landlord:

WE APP Lawnside LLC

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303
Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November            , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC
	TEA COMPANY, INC., a Maryland corporation
	By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Senior Vice President

179

EXHIBIT G

INSURANCE

This Exhibit G shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

1.INSURANCE.

A. Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied thr ough a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)Property insurance covering property damage and business interruption for the entire Demised Premises. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant’s property on the Demised Premises. Such insurance shall name Landlord and Fee Mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, terrorism, sprinkler leakage, flood, windstorm and earthquake, for t he full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co insurance clause of the policies of insurance with a deductible amount not to exceed $750,000. Such insurance shall include rent continuation coverage of no less than twelve (12) months. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any Fee Mortgage to which this Lease is subordinate so long as such holder and future holders of such Fee Mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

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EXHIBIT H

(3)Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(4)Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

(3) claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

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EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark. “Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $35,000,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise

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would be made at, in, on, about, from or with respect to the Premises, nor the amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior

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month to Landlord without demand, provided that if such amount exceeds the Percentage Rent that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calenda r year included in the Term.

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EXHIBIT I

LOCAL LAW ADDENDUM

(Attached)

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Lease Addendum (NJ)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Lawnside LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1. Construction Liens. In no event shall Landlord’s consent to Tenant performing any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of the Lease constitute Landlord’s written authorization for Tenant or contractors engaged by Tenant to file a construction lien against Landlord’s interest in the Demised Premises.

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EXHIBIT J

Confidentiality Agreement

(Attached)

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CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of , 2010 (the “Effective Date”) by and between [TENANT], a                    , having an address at                      (“Company”) and                      , a , having an address at                      (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently devel oped by Disclosee or its Representatives without reference to the Information.

3.In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in

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accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey, Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:

[TENANT], a

By:

Name:

Title:

DISCLOSEE:

                              , a

By:

Name:

Title:

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EXHIBIT B-3

LEASE FORM FOR SEAFORD, NY

191

KEY NO:

LEASE

BY AND BETWEEN

WE APP SEAFORD LLC,
LANDLORD

AND

PATHMARK STORES, INC.,
TENANT

DEMISED PREMISES

AT

4055 MERRICK ROAD, SEAFORD, NEW YORK

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TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	8
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	10
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	15
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	16
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	16
26.	DESTRUCTION	19
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

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TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	27
45.	INVALIDITY OF CERTAIN PROVISIONS	27
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	28
51.	COUNTERPARTS	29
52.	INCORPORATION OF STATE LAW PROVISIONS	29

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LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP SEAFORD LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time to t ime, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.Exhibit A, Site Plan of the Demised Premises;

B.Exhibit B1, Legal Description of the Land;

C.Exhibit B2, Existing Encumbrances on Land

D.Exhibit C, Remedial Work

E.Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.Exhibit E, Memorandum of Lease;

G.Exhibit F, Form of Guaranty;

H.Exhibit G, Insurance Requirements;

I.Exhibit H, Percentage Rent;

J.Exhibit I, Local Law Addendum; and

K.Exhibit J, Confidentiality Agreement.

2.DEMISED PREMISES.

A. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) commonly known as 4055 Merrick Road, Seaford, New York and more particularly described on Exhibit B1 and the buildings and other improvements now or hereafter erected on the Land together with the benefit of and subject to any and all easements, appurtenances, rights and privileges and other matters of record now or hereafter arising including those described in Exhibit B2. The land is currently improved by an

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existing building consisting of approximately 41,030 square feet of space (the “Building”), as more particularly shown on the Site Plan attached hereto as Exhibit A. The Building and any other buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and any Improvements are hereinafter collectively called the “Demised Premises.”

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.TERM.

A.The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 12 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal Notice in accordance with the foregoing, the

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Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginni ng of the next succeeding Renewal Period, the term of this Lease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	1,641,000.00	$	136,750.00
6-10	$	1,723,050.00	$	143,587.50
11-15	$	1,809,202.50	$	150,766.88
16-20	$	1,899,662.63	$	158,305.22
First Renewal Period
21-25	$	1,994,645.76	$	166,220.48
Second Renewal Period
26-30	$	2,094,378.04	$	174,531.50
Third Renewal Period
31-35	$	2,199,096.95	$	183,258.08
Fourth Renewal Period
36-40	$	2,309,051.79	$	192,420.98
Fifth Renewal Period
41-45	$	2,424,504.38	$	202,042.03
Sixth Renewal Period
46-50	$	2,545,729.60	$	212,144.13
Seventh Renewal Period
51-55	$	2,673,016.08	$	222,751.34

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Eighth Renewal Period
56-60	$	2,806,666.89	$	233,888.91
Ninth Renewal Period
61-65	$	2,947,000.23	$	245,583.35
Tenth Renewal Period
66-70	$	3,094,350.24	$	257,862.52

B.All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D. It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Premises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the great est extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall arise during the Term is

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hereby expressly provided to survive the expiration of the Term or early termination of this Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or othe rwise affected by any law or regulation now or hereafter applicable to the Demised Premises or any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payment of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents.

E. If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

6.USE AND OCCUPANCY.

A. The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities Act of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor. Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Demised Premises contrary

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to any law or in a manner likely to create any nuisance. It is intended that Tenant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to wh ich it has given its consent, and to take all other action, in order to effectuate the same, all at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land. Landlord further covenants and agrees, upon request of tenant, to convey without compensation therefor, insubstantial perimeter portions of the Land for highway or roadway purposes, to the state in which the demised premises are situate or any other municipal or governmental body, provided, however, that any such conveyance shall not constitute a taking (as defined in section 28 below) nor constitute grounds for tenant to terminate this Lease. Notwithsta nding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Premises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee as defined below).

C.The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

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7.             TAXES.

A.              Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes (hereinafter collectively referred to as “Taxes”), and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requirements, orders, directives, rules or regulations of the Federal, State, County, To wn and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined).

B.              To the extent permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord’s name, if necessary, and shall execute any and all documents, instruments or certificates reasonably requested by Tenant to accomplish the foregoing.

C.              Tenant shall be deemed to have complied with the covenants of this Lease if payment of Taxes shall have been made either within any period allowed by law or by the applicable governmental authority during which payment is permitted without penalty so long as the Taxes shall never become subject to a tax sale on the Demised Premises or subject Landlord to any civil or criminal liability. Tenant shall produce and exhibit to Landlord satisfactory evidence of payment prior to the expiration of any such period.

D.              All Taxes shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which the Term shall be in effect. Notwithstanding anything to the contrary contained herein, if the Term hereof terminates prior to the date which would have been the expiration thereof but for the earlier termination, then Tenant shall pay those Taxes which would have been paid by Tenant to and including the term expiration date and this obligation shall expressly survive such termination.

E. So long as the requirements of Paragraph C of this Section are complied with, Tenant or its designees shall have the right to contest or review all Taxes by legal proceedings, or in such other manner as it may deem suitable. Tenant or its designees shall inform Landlord of any such proceedings and conduct such proceedings promptly at its own cost and expense, and free of any expenses to Landlord, and if necessary, in the name of and with the cooperation of Landlord (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant). Landlord shall execute all documents, instruments or certificates reasonably necessary and correct to accomplish the foregoing. Notwithstanding anything to the contrary or otherwise set forth herein, any such contest shall be subject to compliance with all applicable provisions of any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no material out of pocket cost to Landlord, in connection with such compliance).

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F.              Landlord covenants and agrees that any refunds or rebates on account of Taxes paid by Tenant pursuant to the provisions of this Lease shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts that may be necessary to secure the payment of any such refund or rebate, directly to Tenant and/or will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Tenant’s application (if legally required) for separate tax assessments for such portions of the Demised Premises as Tenant shall at any time, and from time to time, reasonably designate. Landlord hereby agrees, upon request of Tenant, to execute all documents, instruments or certificates as shall reasonably be required by Tenant (so long as the same impose no material obligations on Landlord or expose Landlord to any liability).

G.              Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns, whether arising out of Landlord’s ownership of the Demised Premises, this Lease or otherwise; provided, however, that if at any time hereafter there is levied any tax on Landlord in lieu of real estate taxes based solely upon the ownership of real property, by property owners, in general, within the tax jurisdiction within which the Demised Premises are located, then such tax shall be considered to be an item of Taxes but for purposes of computing the amount of such tax payable by Tenant, the Demised Premises shall be deemed to be the sole real prope rty owned by Landlord.

H. In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Real Estate Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be necessary so that there shall at all times be sufficient funds in escrow to pay such charges.

8.              SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to include any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant
46;s personal property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.              TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports

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(including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.            REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in comp liance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, window caulking, maintenance of all gas, water, electric and other utility lines from public ways to the Demised Premises, and shall repair, maintain and replace all landscapi ng, roads, parking areas, and walkways appurtenant to the Demised Premises, and shall provide all snowplowing services thereto. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.            INSURANCE.

A.              Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.              So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.< /font>

C.              Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

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D.              Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policie s of insurance required to be carried by Tenant.

E.              Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F. If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12.            REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, if the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contes t (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

13.            ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with th e making of Alterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on

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Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that results from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and th e addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Building.

14.          ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.          UTILITIES.

A.              Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.              Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16.          SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof, provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged and delivered by such Fee Mortgagee to Tenant. If the Fee Mortgagee requires that this Lease have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fee Mortgagee an agreement acknowledging such priority.

17.          TRADE FIXTURES.

A.              All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the

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Demised Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to execute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord and any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment f or purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have any right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.              In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called the “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured Party at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C.              All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke, chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A. Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of

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the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Lease or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s consent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.              So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee unless (x) such transferee (1) operates at least five (5) other grocery stores and (2) has Tangible Net Worth” (as defined in Section 25 below) of at least One Hundred Million Dollars ($100,000,000) or (y) if such transferee does not meet the requirements of (1) and (2) then such transferee must be approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. If Tenant desires to so transfer this Lease to a person who does not meet the requirements of (1)& nbsp;and (2) in the preceding sentence, then Tenant shall give notice of such intended transfer to Landlord together with reasonable information on its grocery store business and its audited financial statements for the three most recent years showing the credit of the proposed transferee and the proposed terms of the transfer. Upon receiving such information Landlord shall have thirty (30) days to elect by written notice to Tenant to do one of the following (and any failure of Landlord to affirmatively elect one or the other shall be deemed to be an election by Landlord to consent to such transfer: (a) approve such transfer, (b) disapprove such transfer, or (c) terminate the Term of this Lease on any date which is no sooner than one-hundred twenty (120) days after such election notice and no later than one-hundred eighty (180) days after such election. If Landlord elects to terminate this Lease and thereafter within one-hundred twenty (120) days enters into a lease or other agreement wit h Tenant’s proposed transferee, any transfer payment that was to have been made to Tenant by such transferee as specifically disclosed in writing as such to Landlord in the proposed terms of the transfer furnished to Landlord as provided above shall be paid by Landlord to Tenant out of the first rent amounts received by Landlord from such transferee until the transfer payment is paid to Tenant in full. For purposes of the previous sentence, a “transfer payment” shall include proposed sublease income in excess of the rent under this Lease, and in such cases Landlord’s payment to Tenant shall be a liquidated amount equal to such excess rent at a discount rate of ten percent (10%).

C.              If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlor d in writing within thirty (30) days after receipt by the Original Tenant of Landlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if

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applicable) upon all of the same terms and conditions of this Lease as it may have been amended by agreement between Landlord and Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease a s theretofore amended, the Original Tenant shall not have the foregoing option.

D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test or the requirements of Section 1 8B are met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit  D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shal l reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee).

19. TITLE AND AUTHORITY.

A.              Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, Landlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.              Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will not violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of its property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property, except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

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C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20.            QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or implied.

21.            UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed by the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance o f monetary obligations.

22. END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (3 0) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed

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Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.          LANDLORD’S DEFAULT.

A.              Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

B.              In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24. ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than such insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.          TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default

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or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tenant does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold the Demised Premises as if this Lease had not been made; and Tenant wai ves the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5) days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B. After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the c ommencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in

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possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as set forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D.              Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (11/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E.              The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any tim e the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater t han the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accordance with generally accepted accounting principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s

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financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A.             In the event of any damage or destruction by fire, the elements, or casualty (hereinafter called “Destruction”) to all or any part of the Building or any other Improvements in the Demised Premises, Tenant shall commence promptly, and with due diligence continue to restore same to substantially the same condition as existed immediately preceding the Destruction, except as otherwise provided in paragraph B of this Section. If the Destruction is partial, Tenant shall complete the restoration within two hundred seventy (270) days after the Destructions, subject to Unavoidable Delays. If the Destruction is total, Tenant shall complete the restoration within eighteen (18) months following the Destruction, subject to Unavoidable Delays. In no event shall Fixed Annual Rent or any Additional Rent abate on accoun t of any Destruction.

B.              If, as a result of any Destruction, fifty percent (50%) or more of the total floor area of the Building is damaged, destroyed or, in Tenant’s reasonable opinion rendered untenantable, during the last two (2) years of the Initial Term or during any Renewal Term (but this shall not apply at any other time), Tenant may elect to terminate this Lease by giving notice to Landlord of such election on or before the date that is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expire and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of term ination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant. In the event that Tenant elects to terminate this Lease as a result of the Destruction referenced above, Tenant shall cause all insurance proceeds to be paid to Landlord including business interruption insurance proceeds.

C. Except in the case of paragraph B of this Section, Insurance proceeds shall be deposited with a bank or trust company acceptable to Landlord and Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee shall be a bank, trust company, insurance company or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures. Any excess insurance proceeds shall be paid to Tenant at the conclusion of the restoration so long as Tenant is not then in default beyond any applicable cure period.

27. EMINENT DOMAIN.

A. In the event of an actual taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter called “Taking”) of the entire Building, then (1) this Lease and the Term shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of

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the Taking, and (2) any Fixed Annual Rent and Additional Rent shall be paid until such termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

B.              (1) In the event of a Taking of twenty (20%) or more of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Building or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Demised Premises or Building on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of term ination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

(2) If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be used by Tenant for restoration as hereinafter set forth and Tenant shall promptly commence and with due diligence continue to restore the portion of the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking. Tenant shall complete the restoration within two hundred seventy (270) days after the Destruction, subject to Unavoidable Delays. Taking proceeds shall be paid, held and disbursed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C.              If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any damages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Land lord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

28.             THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any

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person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcement of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.            WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30.            ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid,

(c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one copy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

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32.            BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.            LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services provided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and L andlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34.            DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tenant shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

35.            ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost and expense, in its own name and/or in the name of Landlord, appear in any such proceeding. Landlord shall fully cooperate with Tenant (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, make such appearances and furnish such information as may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

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36. ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4)the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5)the Toxic Substances Control Act, and any amendments thereto a nd any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Land and Demised Premises prior to the Commencement Date. Tenant shall provide Landlord with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof. Landlord shall cooperate with Tenant (so long as Landlord’s cooperation does not involve inc urring obligations or liability or material expense to Landlord unreimbursed by Tenant) and provide such documents, affidavits and information as may be reasonably necessary for Tenant to comply with all Environmental Laws.

C. If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Land or Demised Premises or Hazardous Materials activities have taken place on the Land or Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitat ion all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date (and for these purposes, the loss indemnified shall include without limitation any costs of

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investigation or remediation, and any claim of personal injury or property damage to any person); provided, however, that such indemnity shall not include and Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties. The covenants of this Section shall survive the Term. Tenant shall from time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A.             Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and interests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlor d by reason of the right given to so mortgage such interest in this Lease. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empowered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than $100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B.              If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1)             There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

(2)             Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of

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defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mortgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)             If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)             Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

(5)             If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)             The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgagee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7) Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such proceeding and be made a party to such proceeding, and the parties hereby consent to such intervention. Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

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Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38.            INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employees, (“Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whol e or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any person or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the covenants of this Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense of all of the foregoin g matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.            LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their managers, members, directors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to l evy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of their interest in the Demised Premises. In no event shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

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40.            BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross sales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fiscal year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance w ith the terms of Exhibit J and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit J (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.            SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.            NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference, presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.            SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exercise of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.            CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.            INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

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46.            CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.            NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party’s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or termination notice shall not be deemed a waiver of such notice.

48.            ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease (including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs and other usual costs of litigation of this type) incurred by such prevailing party.

49.            WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50. MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and delivered by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord o r Tenant as well as invitees or independent contractors of

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Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s appro val or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notices, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence an d whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties or representations other than those expressly set forth in this Lease. Without limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, T enant from time to time will confirm such matters directly with such Fee Mortgagee.

51.            COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.            INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit I attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control.

[SIGNATURE PAGE FOLLOWS]

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		IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective Date.
WITNESS:
		WE APP SEAFORD LLC, a Delaware limited liability company
Name:		By:
		Name:
		Title:
WITNESS:
		PATHMARK STORES, INC., a Delaware corporation
Name:	Craig H. Feldman	By:
		Name:	Christopher W. McGarry
		Title:	Vice President and Secretary

Signature Page to Lease By and Between
WE APP SEAFOOD LLC and PATHMARK STORES, INC

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B1

LEGAL DESCRIPTION OF THE LAND

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1.Taxes, tax liens, tax sales, water rates, sewer rents and assessments not yet due and payable.

2.Reservations for Easements contained in a deed by Avis A. Bond and Ruth Pine to Shop-Rite of Watchung, Inc., dated 6/1/67 recorded 6/6/67 in Liber 7676 cp 191.

3. Agreement for Non-Exclusive easement of ingress and egress by and between Shop-Rite of Watchung, Inc. and Avis A. Bond and Ruth Pine dated as of 10/09/67 recorded 1/26/68 in Liber 7785 cp 277.

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: $425,000.00

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or (iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If any such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

C.4 Re-allocation of Reimbursement Cap. Upon the completion of the Remedial Work up to $20,000 of the Reimbursement Cap may be allocated to increase the “Reimbursement Cap” under any other lease between Tenant and any Affiliate of Landlord (except for that certain lease for space at 9210 Atlantic Avenue, Queens (Ozone Park), New York).

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                              2010, by and among                              , a             , and its successors and assigns, having an office at                                           (hereinafter together with its successors and assigns calle d “Mortgagee”), WE APP Seaford LLC, a Delaware limited liability company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                         evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November    2010 and amended by [ ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November     2010 was recorded on November     , 2010 in the                 in Book                       , Page                       ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.               Mortgagee hereby consents to and approves the Lease.

2.               Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.               Tenant certifies that the Lease is presently in full force and effect.

4.               Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.             Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.              The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed given in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.               Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.               If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

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A.             Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.              Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlord expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually received by Mortgagee or if such prepayment shall have been expressly approved of in writing by s uch new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.               If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.               Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

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direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.               Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Administration of Tenant, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other add resses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.             This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.             This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.             This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:
	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

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	LANDLORD:
	WE APP SEAFORD LLC, a Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a Delaware corporation
Name:	By:
	Name:	Christopher W. McGarry
	Title:	Vice President and Secretary

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WITNESS: LANDLORD:

MORTGAGEE ACKNOWLEDGMENT

STATE OF                   )

SS:              

COUNTY OF              )

ON THIS              day of              2010, before me, the subscriber, personally appeared              to me known, who being by me duly sworn, did depose and say that he is              of              the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this                 day of                 2010, before me, the undersigned notary public, personally appeared                 , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                 of WE APP Seaford LLC.

Notary Public

My Commission Expires:

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TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS                 day of                 , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

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EXHIBIT E

KEY NO:                                        

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP SEAFORD LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

1.              For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 41,030 square feet of space (the “Building), as more particularly shown on the site plan attached hereto as Ex hibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.               The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.               Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.               The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.               This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the State of New York, and is in no way intended to

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change, alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP SEAFORD LLC, a Delaware limited liability company
Name:	By:
		Name:
		Title:
WITNESS:	PATHMARK STORES, INC., a Delaware corporation
Name: Craig H. Feldman	By:
	Name:		Christopher W. McGarry
	Title:		Vice President and Secretary

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EXHIBIT B

DEMISED PREMISES

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EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

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COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this            day of November 2010, before me, the undersigned notary public, personally appeared                                                 , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                                    of WE APP Seaford LLC.

	Notary Public
	My Commission Expires:
STATE OF NEW JERSEY)
SS
COUNTY OF BERGEN)

ON THIS           day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 4055 Merrick Road, Seaford, New York, with WE APP SEAFORD LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.               Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafter does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.               Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant’s performance as required by the terms of the Lease. Guarantor also waives, unless and unti l all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) the release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whether made with or without notice to Guarantor, including without limitation any impairment, mod ification, change, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

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bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.               This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guarantor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of all Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amo unt then due on this Guaranty.

4.               Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with travel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to enforce any of its rights, remedies or powers against or in respect of either or both Tenant or G uarantor (whether or not suit is instituted in connection with such efforts).

5. Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions thereof will constitute a default under or result in the creation of any l ien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

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6.               This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, approvals and all other documents relating hereto may be reproduced by photographic, microfilm, mic rofiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.               Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease. Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involving any matter in any way arising out of or relating to this Guaranty or the Lease.

8. Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

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Landlord:

WE APP Seaford LLC

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303

Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November         , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC
	TEA COMPANY, INC., a Maryland corporation
	By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Senior Vice President

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EXHIBIT G

INSURANCE

This Exhibit G shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

1.               INSURANCE.

A. Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)             Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied through a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)             Property insurance covering property damage and business interruption for the entire Demised Premises. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant’s property on the Demised Premises. Such insurance shall name Landlord and Fee Mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, terrorism, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall re asonably request from time to time and in amounts that meet any co insurance clause of the policies of insurance with a deductible amount not to exceed $750,000. Such insurance shall include rent continuation coverage of no less than twelve (12) months. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any Fee Mortgage to which this Lease is subordinate so long as such holder and future holders of such Fee Mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

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(3)             Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(4)             Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)           claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)           claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

(3) claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

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EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark.

“Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $51,500,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise

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would be made at, in, on, about, from or with respect to the Premises, nor the amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior

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month to Landlord without demand, provided that if such amount exceeds the Percentage Rent that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calenda r year included in the Term.

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EXHIBIT I

LOCAL LAW ADDENDUM

(Attached)

252

Lease Addendum (NY)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Seaford LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1.               Construction Lien. Nothing in the Lease shall be deemed to constitute Landlord’s consent or request, express or implied, by inference or otherwise: (a) to any contractor, subcontractor, laborer, or material supplier for the performance of any labor or the furnishing of any materials for any improvement, alteration or repair of the Demised Premises; or (b) to subject the Demised Premises to any mechanic’s lien.

2.               Maintenance of Property.

A.            To the extent the Lease requires Tenant to maintain or repair any sidewalk, Tenant shall perform all obligations of Landlord (and shall indemnify Landlord in the manner provided in the Lease against any liability of Landlord arising) under New York City Administrative Code §2-710 and -711.

B.            Tenant shall not clean any window in or about the Demised Premises (or require, permit, suffer, or allow any window to be cleaned) from the outside in violation of New York Labor Law §202.

3.               Landlord’s Remedies.

A.            Notwithstanding anything to the contrary in New York Real Property Actions and Proceedings Law (N.Y. RPAPL) §711(2) or any other applicable law or rule of procedure, Landlord’s acceptance of any partial payment on account of rent, even if such payment has been acknowledged or receipted for in writing, shall not be deemed to constitute Landlord’s “express consent in writing to permit Tenant to continue in possession” as referred to in N.Y. RPAPL §711(2) unless Landlord’s written acceptance expressly states that: “Landlord consents to Tenant’s remaining in possession notwithstanding nonpayment of rent.” Any such part payment shall merely constitute a payment on account and nothing more, and shall not limit any rights or remedies of Landlord.

B.            Tenant expressly waives and releases, for itself and for any person claiming by, through or under Tenant, any rights that Tenant or such person may have under New York civil practice law and rules §220 1 (or any other law or rule of procedure, including any provisions of the New York real property actions and proceedings law), in connection with any holdover proceedings or other action or proceeding regarding this Lease, Tenant’s rights as a tenant of the Building, or Tenant’s possession of the Demised Premises.

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4.               Casualty. The provisions of Article 26 of this Lease on destruction shall be deemed an express agreement as to damage or destruction of the Demised Premises by fire or other casualty. New York Real Property Law §227 (and any similar or successor statute), providing for such a contingency in the absence of an express agreement, shall have no application.

5.               Redemption. Tenant specifically waives the right of redemption provided for in New York Real Property Actions and Proceedings Law §761, and any similar or successor statute.

6.               Landmarks. Tenant acknowledges and agrees that it shall not seek or support a landmark designation, unless such landmark designation is specifically sought by Landlord, pursuant to the New York City Administrative Code §25-322 for the Demised Premises or any part of the Building.

7.               Zoning Lot. Tenant acknowledges that Tenant has no rights to or interest in any development rights, “air rights,” rights to construct additional floor area, or comparable rights appurtenant to the Demised Premises. Tenant consents, without further consideration, to Landlord’s utilization or transfer of such rights in any manner. Tenant shall promptly execute and deliver any instruments that Landlord may reasonably request, including without limitation, instruments merging zoning lots, or waiving Tenant’s right to join in such instruments, to evidence such acknowledgment and consent. The provisions of this paragraph are and shall be deemed to be and shall be construed as Tenant’s express waiver and release of any interest Tenant m ay have as a “party in interest” (as defined under the definition of “Zoning Lot” in §12- 10 of the New York City Zoning Resolution or any similar or successor statute) in the Demised Premises.

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EXHIBIT J

Confidentiality Agreement

(Attached)

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CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of                   , 2010 (the “Effective Date”) by and between [TENANT], a                             , having an address at                                             (“Company”) and                    , a             &nbs p;            , having an address at                       (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.             The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.             The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently developed by Disclosee or its Representatives without reference to the Information.

3.             In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.             Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey,

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Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.             Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.             This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:
[TENANT], a
By:
Name:
Title:
DISCLOSEE:
	, a
By:
Name:
Title:

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EXHIBIT B-4

LEASE FORM FOR BALDWIN, NY

259

KEY NO:

LEASE

BY AND BETWEEN

WE APP BALDWIN LLC,
LANDLORD

AND

PATHMARK STORES, INC.,
TENANT

DEMISED PREMISES

AT

1764 GRAND AVENUE, BALDWIN, NEW YORK

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TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	9
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	10
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT.	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	15
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	16
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	16
26.	DESTRUCTION	19
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

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TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	27
45.	INVALIDITY OF CERTAIN PROVISIONS	27
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	28
51.	COUNTERPARTS	29
52.	INCORPORATION OF STATE LAW PROVISIONS	29

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LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP BALDWIN LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time to t ime, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.           EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.             Exhibit A, Site Plan of the Demised Premises;

B.              Exhibit B1, Legal Description of the Land;

C.              Exhibit B2, Existing Encumbrances on Land

D.              Exhibit C, Remedial Work

E.              Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.              Exhibit E, Memorandum of Lease;

G.              Exhibit F, Form of Guaranty;

H.              Exhibit G, Insurance Requirements;

I.               Exhibit H, Percentage Rent;

J.               Exhibit I, Local Law Addendum; and

K.              Exhibit J, Confidentiality Agreement.

2.           DEMISED PREMISES.

A. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) commonly known as 1764 Grand Avenue, Baldwin, New York and more particularly described on Exhibit B1 and the buildings and other improvements now or hereafter erected on the Land together with the benefit of and subject to any and all easements, appurtenances, rights and privileges and other matters of record now or hereafter arising including those described in Exhibit B2. The land is currently improved by an

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existing building consisting of approximately 51,798 square feet of space (the “Building”), as more particularly shown on the Site Plan attached hereto as Exhibit A. The Building and any other buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and any Improvements are hereinafter collectively called the “Demised Premises.”

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.           TERM.

A.             The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.              The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 12 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal Notice in accordance with the foregoing, the

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Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginni ng of the next succeeding Renewal Period, the term of this Lease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.           RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	1,450,344.00	$	120,862.00
6-10	$	1,522,861.20	$	126,905.10
11-15	$	1,599,004.26	$	133,250.36
16-20	$	1,678,954.47	$	139,912.87
First Renewal Period
21-25	$	1,762,902.20	$	146,908.52
Second Renewal Period
26-30	$	1,851,047.31	$	154,253.94
Third Renewal Period
31-35	$	1,943,599.67	$	161,966.64
Fourth Renewal Period
36-40	$	2,040,779.66	$	170,064.97
Fifth Renewal Period
41-45	$	2,142,818.64	$	178,568.22
Sixth Renewal Period
46-50	$	2,249,959.57	$	187,496.63

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Seventh Renewal Period
51-55	$	2,362,457.55	$	196,871.46
Eighth Renewal Period
56-60	$	2,480,580.43	$	206,715.04
Ninth Renewal Period
61-65	$	2,604,609.45	$	217,050.79
Tenth Renewal Period
66-70	$	2,734,839.92	$	227,903.33

B.              All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.              Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D.  It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Premises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted

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including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the greatest extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall arise during the Term is hereby expressly provided to survive the expiration of the Term or early termination of this Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as oth erwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or otherwise affected by any law or regulation now or hereafter applicable to the Demised Premises or any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payme nt of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents.

E.  If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

6.         USE AND OCCUPANCY.

A. The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities Act of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor.

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Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Demised Premises contrary to any law or in a manner likely to create any nuisance. It is intended that Tenant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.              Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to which it has given its consent, and to take all other action, in order to effectuate the same, al l at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land. Landlord further covenants and agrees, upon request of tenant, to convey without compensation therefor, insubstantial perimeter portions of the Land for highway or roadway purposes, to the state in which the demised premises are situate or any other municipal or governmental body, provided, however, that any such conveyance shall not constitute a taking (as defined in section 28 below) nor constitute grounds for tenant to terminate this Lease. Notwithstanding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Pr emises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee as defined below).

C.              The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operati ons, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as

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applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

7.             TAXES.

A.             Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes (hereinafter collectively referred to as “Taxes”), and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requirements, orders, directives, rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined).

B.              To the extent permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord’s name, if necessary, and shall execute any and all documents, instruments or certificates reasonably requested by Tenant to accomplish the foregoing.

C.              Tenant shall be deemed to have complied with the covenants of this Lease if payment of Taxes shall have been made either within any period allowed by law or by the applicable governmental authority during which payment is permitted without penalty so long as the Taxes shall never become subject to a tax sale on the Demised Premises or subject Landlord to any civil or criminal liability. Tenant shall produce and exhibit to Landlord satisfactory evidence of payment prior to the expiration of any such period.

D.              All Taxes shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which the Term shall be in effect. Notwithstanding anything to the contrary contained herein, if the Term hereof terminates prior to the date which would have been the expiration thereof but for the earlier termination, then Tenant shall pay those Taxes which would have been paid by Tenant to and including the term expiration date and this obligation shall expressly survive such termination.

E. So long as the requirements of Paragraph C of this Section are complied with, Tenant or its designees shall have the right to contest or review all Taxes by legal proceedings, or in such other manner as it may deem suitable. Tenant or its designees shall inform Landlord of any such proceedings and conduct such proceedings promptly at its own cost and expense, and free of any expenses to Landlord, and if necessary, in the name of and with the cooperation of Landlord (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant). Landlord shall

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execute all documents, instruments or certificates reasonably necessary and correct to accomplish the foregoing. Notwithstanding anything to the contrary or otherwise set forth herein, any such contest shall be subject to compliance with all applicable provisions of any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no material out of pocket cost to Landlord, in connection with such compliance).

F.              Landlord covenants and agrees that any refunds or rebates on account of Taxes paid by Tenant pursuant to the provisions of this Lease shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts that may be necessary to secure the payment of any such refund or rebate, directly to Tenant and/or will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Tenant’s application (if legally required) for separate tax assessments for such portions of the Demised Premises as Tenant shall at any time, and from time to time, reasonably designate. Landlord hereby agrees, upon request of Tenant, to execute all documents, instruments or certificates as shall reasonably be required by Tenant (so long as the same impose no material obligations on Landlord or expose Landlord to any liability).

G.              Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns, whether arising out of Landlord’s ownership of the Demised Premises, this Lease or otherwise; provided, however, that if at any time hereafter there is levied any tax on Landlord in lieu of real estate taxes based solely upon the ownership of real property, by property owners, in general, within the tax jurisdiction within which the Demised Premises are located, then such tax shall be considered to be an item of Taxes but for purposes of computing the amount of such tax payable by Tenant, the Demised Premises shall be deemed to be the sole real prope rty owned by Landlord.

H. In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Real Estate Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be necessary so that there shall at all times be sufficient funds in escrow to pay such charges.

8. SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to include any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant’s personal

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property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.              TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports (including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.            REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in comp liance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, window caulking, maintenance of all gas, water, electric and other utility lines from public ways to the Demised Premises, and shall repair, maintain and replace all landscapi ng, roads, parking areas, and walkways appurtenant to the Demised Premises, and shall provide all snowplowing services thereto. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.           INSURANCE.

A.             Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.              So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to

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Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.

C.              Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

D.              Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policie s of insurance required to be carried by Tenant.

E.              Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F.              If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12.          REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, if the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contest (so long a s Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

13.          ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used

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in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with the making of Alterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that results from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and the addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Building.

14.          ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.          UTILITIES.

A.             Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.              Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16. SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof, provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged and delivered by such Fee Mortgagee to Tenant. If the Fee Mortgagee requires that this Lease

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have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fee Mortgagee an agreement acknowledging such priority.

17. TRADE FIXTURES.

A.             All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the Demised Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to execute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord a nd any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment for purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have any right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.              In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called the “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured Party at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C. All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke,

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chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A.             Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Lease or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s c onsent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.              So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee unless (x) such transferee (1) operates at least five (5) other grocery stores and (2) has Tangible Net Worth” (as defined in Section 25 below) of at least One Hundred Million Dollars ($100,000,000) or (y) if such transferee does not meet the requirements of (1) and (2) then such transferee must be approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. If Tenant desires to so transfer this Lease to a person who does not meet the requirements of (1)& nbsp;and (2) in the preceding sentence, then Tenant shall give notice of such intended transfer to Landlord together with reasonable information on its grocery store business and its audited financial statements for the three most recent years showing the credit of the proposed transferee and the proposed terms of the transfer. Upon receiving such information Landlord shall have thirty (30) days to elect by written notice to Tenant to do one of the following (and any failure of Landlord to affirmatively elect one or the other shall be deemed to be an election by Landlord to consent to such transfer: (a) approve such transfer, (b) disapprove such transfer, or (c) terminate the Term of this Lease on any date which is no sooner than one-hundred twenty (120) days after such election notice and no later than one-hundred eighty (180) days after such election. If Landlord elects to terminate this Lease and thereafter within one-hundred twenty (120) days enters into a lease or other agreement wit h Tenant’s proposed transferee, any transfer payment that was to have been made to Tenant by such transferee as specifically disclosed in writing as such to Landlord in the proposed terms of the transfer furnished to Landlord as provided above shall be paid by Landlord to Tenant out of the first rent amounts received by Landlord from such transferee until the transfer payment is paid to Tenant in full. For purposes of the previous sentence, a “transfer payment” shall include proposed sublease income in excess of the rent under this Lease, and in such cases Landlord’s payment to Tenant shall be a liquidated amount equal to such excess rent at a discount rate of ten percent (10%).

C. If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein

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called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlord in writing within thirty (30) days after receipt by the Original Tenant of Landlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if applicable) upon all of the same terms and conditions of this Lease as it may have been amended by agreement between Landlord an d Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease as theretofore amended, the Original Tenant shall not have the foregoing option.

D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test or the requirements of Section 1 8B are met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit  D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shal l reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee).

19. TITLE AND AUTHORITY.

A.             Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, Landlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.              Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this

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Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will not violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of its property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property, except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20.          QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or implied.

21.          UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed by the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance of monetary o bligations.

22. END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (3 0) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to

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Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.        LANDLORD’S DEFAULT.

A.             Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

B.              In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24. ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than such insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.        TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of

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this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tena nt does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold the Demised Premises as if this Lease had not been made; and Tenant waives the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5)&nbs p;days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B. After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the c ommencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable

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rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C.Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as set forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D.Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (1 1/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E. The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any time the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater than the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial

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statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accordance with generally accepted accounting principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A.In the event of any damage or destruction by fire, the elements, or casualty (hereinafter called “Destruction”) to all or any part of the Building or any other Improvements in the Demised Premises, Tenant shall commence promptly, and with due diligence continue to restore same to substantially the same condition as existed immediately preceding the Destruction, except as otherwise provided in paragraph B of this Section. If the Destruction is partial, Tenant shall complete the restoration within two hundred seventy (270) days after the Destructions, subject to Unavoidable Delays. If the Destruction is total, Tenant shall complete the restoration within eighteen (18) months following the Destruction, subject to Unavoidable Delays. In no event shall Fixed Annual Rent or any Additional Rent abate on account of any Destruction.

B.If, as a result of any Destruction, fifty percent (50%) or more of the total floor area of the Building is damaged, destroyed or, in Tenant’s reasonable opinion rendered untenantable, during the last two (2) years of the Initial Term or during any Renewal Term (but this shall not apply at any other time), Tenant may elect to terminate this Lease by giving notice to Landlord of such election on or before the date that is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expi re and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant. In the event that Tenant elects to terminate this Lease as a result of the Destruction referenced above, Tenant shall cause all insurance proceeds to be paid to Landlord including business interruption insurance proceeds.

C. Except in the case of paragraph B of this Section, Insurance proceeds shall be deposited with a bank or trust company acceptable to Landlord and Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee shall be a bank, trust company, insurance company or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures. Any excess insurance proceeds shall be paid to Tenant at the conclusion of the restoration so long as Tenant is not then in default beyond any applicable cure period.

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27. EMINENT DOMAIN.

A.In the event of an actual taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter called “Taking”) of the entire Building, then (1) this Lease and the Term shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of the Taking, and (2) any Fixed Annual Rent and Additional Rent shall be paid until such termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

B.(1) In the event of a Taking of twenty (20%) or more of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Building or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Demised Premises or Building on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of termination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

(2) If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be used by Tenant for restoration as hereinafter set forth and Tenant shall promptly commence and with due diligence continue to restore the portion of the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking. Tenant shall complete the restoration within two hundred seventy (270) days after the Destruction, subject to Unavoidable Delays. Taking proceeds shall be paid, held and disbursed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C. If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any

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damages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Landlord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

28.THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcement of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30. ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one copy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of

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the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

32.BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services pro vided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and Landlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34.DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tena nt shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

35.ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost and expense, in its own name and/or in the name of Landlord, appear in any such

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proceeding. Landlord shall fully cooperate with Tenant (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, make such appearances and furnish such information as may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

36. ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4) the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5) the Toxic Substances Control Act, and any amendments thereto and any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Land and Demised Premises prior to the Commencement Date. Tenant shall provide Landlord with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof. Landlord shall cooperate with Tenant (so long as Landlord’s cooperation does not involve inc urring obligations or liability or material expense to Landlord unreimbursed by Tenant) and provide such documents, affidavits and information as may be reasonably necessary for Tenant to comply with all Environmental Laws.

C. If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Land or Demised Premises or Hazardous Materials activities have taken place on the Land or Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, representations and the like from time to time at

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Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitation all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date (and for these purposes, the loss indemnified shall include without limitation any costs of investigation or remediation, and any claim of personal injury or property damage to any person); provided, however, that such indemnity shall not include and Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties. The covenants of this Section shall survive the Term. Tenant shall fro m time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A.Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and inter ests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Lease. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empow ered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than $100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B.If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1) There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

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(2)Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclos ure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mortgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

(5)If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgagee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7)Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such

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proceeding and be made a party to such proceeding, and the parties hereby consent to such intervention. Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38.INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employ ees, (“Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whole or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any person or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the cov enants of this Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense of all of the foregoing matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their manager s, members, directors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to levy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial

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proceeding or order beyond the extent of their interest in the Demised Premises. In no event shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

40.BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross sales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fisc al year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance with the terms of Exhibit J and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit J (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference, presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exercise of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be

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affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

46.CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party’s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or terminatio n notice shall not be deemed a waiver of such notice.

48.ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease (including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs and other usual costs of litigation of this type) incurred by such prevailing party.

49.WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50. MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and delivered by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons

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acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord or Tenant as well as invitees or independent contractors of Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s approval or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notices, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties or representations other than those e xpressly set forth in this Lease. Without limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, Tenant from time to time will confirm such matters directly with such Fee Mortgagee.

51.COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit I attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control.

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[SIGNATURE PAGE FOLLOWS]

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	IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective Date.
WITNESS:
		WE APP BALDWIN LLC, a Delaware limited liability company
Name:		By:
		Name:
		Title:
WITNESS:
		PATHMARK STORES, INC., a
		Delaware corporation
		By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Vice President and Secretary

Signature Page to Lease By and Between
WE APP BALDWIN LLC and PATHMARK STORES, INC.

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B2

LEGAL DESCRIPTION OF THE LAND

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1. Taxes, tax liens, tax sales, water rates, sewer rents and assessments not yet due and payable.

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: $425,000.00

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or (iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If an y such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

C.4 Re-allocation of Reimbursement Cap. Upon the completion of the Remedial Work up to $20,000 of the Reimbursement Cap may be allocated to increase the “Reimbursement Cap” under any other lease between Tenant and any Affiliate of Landlord (except for that certain lease for space at 9210 Atlantic Avenue, Queens (Ozone Park), New York).

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                      2010, by and among                       , a                        , and its successors and assigns, having an office at                                (hereinafter together with its successors and assigns called “Mortgagee”), WE APP Baldwin LLC, a Delaware limited lia bility company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                     evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November    2010 and amended by [ ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November     2010 was recorded on November     , 2010 in the                in Book                   , Page                ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.               Mortgagee hereby consents to and approves the Lease.

2.Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.Tenant certifies that the Lease is presently in full force and effect.

4.Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed given in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

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A.Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlord expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually received by Mortgagee or if such prepay ment shall have been expressly approved of in writing by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

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direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Administration of Tena nt, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other addresses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:
	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

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	LANDLORD:
	WE APP BALDWIN LLC, a Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a
	Delaware corporation
Name:
	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

303

WITNESS:

MORTGAGEE ACKNOWLEDGMENT

STATE OF                          )

SS:

COUNTY OF                      )

ON THIS              day of                     2010, before me, the subscriber, personally appeared                    to me known, who being by me duly sworn, did depose and say that he is               of              the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this              day of                 2010, before me, the undersigned notary public, personally appeared                      , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                    of WE APP Baldwin LLC.

Notary Public

My Commission Expires:

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TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS               day of                      , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

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EXHIBIT E

KEY NO:                                            

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP BALDWIN LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

1.For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 51,798 square feet of space (the “Building), as more particularly shown on the site plan attached hereto as Exhibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the State of New York, and is in no way intended to

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change, alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP BALDWIN LLC, a Delaware limited liability company
Name:	By:
		Name:
		Title:
WITNESS:	PATHMARK STORES, INC., a
	Delaware corporation
Name: Craig H. Feldman	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

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EXHIBIT A

DEMISED PREMISES

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EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

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COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this                day of November 2010, before me, the undersigned notary public, personally appeared                       , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                           of WE APP Baldwin LLC.

Notary Public

My Commission Expires:

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS           day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT F

UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 1764 Grand Avenue, Baldwin, New York, with WE APP Baldwin LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafter does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant&# 146;s performance as required by the terms of the Lease. Guarantor also waives, unless and until all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) the release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whe ther made with or without notice to Guarantor, including without limitation any impairment, modification, change, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

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bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guarantor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of a ll Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amount then due on this Guaranty.

4.Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with travel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to en force any of its rights, remedies or powers against or in respect of either or both Tenant or Guarantor (whether or not suit is instituted in connection with such efforts).

5.Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution n or delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions thereof will constitute a default under or result in the creation of any lien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

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6.This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, appr ovals and all other documents relating hereto may be reproduced by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease. Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involv ing any matter in any way arising out of or relating to this Guaranty or the Lease.

8. Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

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Landlord:

WE APP Baldwin LLC

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303

Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November         , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC
	TEA COMPANY, INC., a Maryland corporation
	By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Senior Vice President

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EXHIBIT G

INSURANCE

This Exhibit G shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

1.INSURANCE.

A. Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied thr ough a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)Property insurance covering property damage and business interruption for the entire Demised Premises. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant’s property on the Demised Premises. Such insurance shall name Landlord and Fee Mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, terrorism, sprinkler leakage, flood, windstorm and earthquake, for t he full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co insurance clause of the policies of insurance with a deductible amount not to exceed $750,000. Such insurance shall include rent continuation coverage of no less than twelve (12) months. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any Fee Mortgage to which this Lease is subordinate so long as such holder and future holders of such Fee Mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

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(3)Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(4)Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

(3)claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

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EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark.

“Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $45,500,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise

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would be made at, in, on, about, from or with respect to the Premises, nor the amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior

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month to Landlord without demand, provided that if such amount exceeds the Percentage Rent that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calenda r year included in the Term.

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EXHIBIT I

LOCAL LAW ADDENDUM

(Attached)

321

Lease Addendum (NY)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Baldwin LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1.Construction Lien. Nothing in the Lease shall be deemed to constitute Landlord’s consent or request, express or implied, by inference or otherwise: (a) to any contractor, subcontractor, laborer, or material supplier for the performance of any labor or the furnishing of any materials for any improvement, alteration or repair of the Demised Premises; or (b) to subject the Demised Premises to any mechanic’s lien.

2.Maintenance of Property.

A.To the extent the Lease requires Tenant to maintain or repair any sidewalk, Tenant shall perform all obligations of Landlord (and shall indemnify Landlord in the manner provided in the Lease against any liability of Landlord arising) under New York City Administrative Code §2- 710 and -711.

B.Tenant shall not clean any window in or about the Demised Premises (or require, permit, suffer, or allow any window to be cleaned) from the outside in violation of New York Labor Law §202.

3.Landlord’s Remedies.

A.Notwithstanding anything to the contrary in New York Real Property Actions and Proceedings Law (N.Y. RPAPL) §711(2) or any other applicable law or rule of procedure, Landlord’s acceptance of any partial payment on account of rent, even if such payment has been acknowledged or receipted for in writing, shall not be deemed to constitute Landlord’s “express consent in writing to permit Tenant to continue in possession” as referred to in N.Y. RPAPL §711(2) unless Landlord’s written acceptance expressly states that: “Landlord consents to Tenant’s remaining in possession notwithstanding nonpayment of rent.” Any such part payment shall merely constitute a payment on account a nd nothing more, and shall not limit any rights or remedies of Landlord.

B.Tenant expressly waives and releases, for itself and for any person claiming by, through or under Tenant, any rights that Tenant or such person may have under New York civil practice law and rules §220 1 (or any other law or rule of procedure, including any provisions of the New York real property actions and proceedings law), in connection with any holdover proceedings or other action or proceeding regarding this Lease, Tenant’s rights as a tenant of the Building, or Tenant’s possession of the Demised Premises.

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4.Casualty. The provisions of Article 26 of this Lease on destruction shall be deemed an express agreement as to damage or destruction of the Demised Premises by fire or other casualty. New York Real Property Law §227 (and any similar or successor statute), providing for such a contingency in the absence of an express agreement, shall have no application.

5.Redemption. Tenant specifically waives the right of redemption provided for in New York Real Property Actions and Proceedings Law §761, and any similar or successor statute.

6.Landmarks. Tenant acknowledges and agrees that it shall not seek or support a landmark designation, unless such landmark designation is specifically sought by Landlord, pursuant to the New York City Administrative Code §25-322 for the Demised Premises or any part of the Building.

7.Zoning Lot. Tenant acknowledges that Tenant has no rights to or interest in any development rights, “air rights,” rights to construct additional floor area, or comparable rights appurtenant to the Demised Premises. Tenant consents, without further consideration, to Landlord’s utilization or transfer of such rights in any manner. Tenant shall promptly execute and deliver any instruments that Landlord may reasonably request, including without limitation, instruments merging zoning lots, or waiving Tenant’s right to join in such instruments, to evidence such acknowledgment and consent. The provisions of this paragraph are and shal l be deemed to be and shall be construed as Tenant’s express waiver and release of any interest Tenant may have as a “party in interest” (as defined under the definition of “Zoning Lot” in § 12-10 of the New York City Zoning Resolution or any similar or successor statute) in the Demised Premises.

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EXHIBIT J

Confidentiality Agreement

(Attached)

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CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of             , 2010 (the “Effective Date”) by and between [TENANT], a             , having an address at (“Company”) and               , a                          , having an address at                    (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently devel oped by Disclosee or its Representatives without reference to the Information.

3.In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey,

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Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:

[TENANT], a

By:

Name:

Title:

DISCLOSEE:

                                                     , a

By:

Name:

Title:

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EXHIBIT B-5

LEASE FORM FOR QUEENS, NY — OZONE PARK

328

KEY NO:

LEASE

BY AND BETWEEN

WE APP OZONE PARK LLC,
LANDLORD

AND

PATHMARK STORES, INC.,

TENANT

DEMISED PREMISES

AT

9210 ATLANTIC AVENUE, QUEENS, NY

329

TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	9
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	11
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	14
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	15
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	16
26.	DESTRUCTION	18
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

330

TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	28
45.	INVALIDITY OF CERTAIN PROVISIONS	28
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	29
51.	COUNTERPARTS	29
52.	EXHIBITS	30
53.	INCORPORATION OF STATE LAW PROVISIONS	30

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LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP OZONE PARK LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time to time, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.Exhibit A, Site Plan of the Demised Premises;

B.Exhibit B1, Legal Description of the Land;

C.Exhibit B2, Existing Encumbrances on Land

D.Exhibit C, Remedial Work

E.Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.Exhibit E, Memorandum of Lease;

G.Exhibit F, Form of Guaranty;

H.Exhibit G, Insurance Requirements;

I.Exhibit H, Percentage Rent;

J.Exhibit I, Special Shopping Center Provisions;

K.Exhibit J, Local Law Addendum; and

L.Exhibit K, Confidentiality Agreement.

2.DEMISED PREMISES.

A.Landlord hereby leases to Tenant and Tenant hereby takes from Landlord certain premises commonly known as 9210 Atlantic Avenue, Queens, New York and labeled

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“Demised Premises” and shown crosshatched on Exhibit A and the improvements now or hereafter erected on said premises (said premises and improvements being hereinafter collectively called the “Demised Premises” or “Building”), together with the benefit of and subject to any and all easements or other matters or record, appurtenances, rights and privileges now or hereafter belonging thereto including those described in Exhibit B2. The Demised Premises is located within that certain parcel of land (hereinafter called the “Land”) described on Exhibit B-1 and contains 62,668 square feet of space. Any buildings and improvements now or hereafter erected on the Land, including the Demised Premises, shall be hereinafter called “Improvements”. The Land and the Improvements shall be hereinafter collectively called the “Shopping Center”. Landlord hereby gr ants to Tenant the right and easement to use, in common with other permitted tenants of the Shopping Center, those portions of the Shopping Center not included within the Improvements shown on Exhibit A and intended for common use, including, without limitation, parking areas, roads, streets, drives, tunnels, passageways, landscaped areas, open and enclosed malls, exterior ramps, walks and arcades (hereinafter collectively called the “Common Area”) for access and egress to and customer parking for the Demised Premises.

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.TERM.

A.The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 1 2 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in

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default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal N otice in accordance with the foregoing, the Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginning of the next succeeding Renewal Period, the term of this L ease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	2,820,060.00	$	235,005.00
6-10	$	2,961,063.00	$	246,755.25
11-15	$	3,109,116.15	$	259,093.01
16-20	$	3,264,571.96	$	272,047.66
First Renewal Period
21-25	$	3,427,800.56	$	285,650.05
Second Renewal Period
26-30	$	3,599,190.58	$	299,932.55
Third Renewal Period
31-35	$	3,779,150.11	$	314,929.18
Fourth Renewal Period
36-40	$	3,968,107.62	$	330,675.63

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Fifth Renewal Period
41-45	$	4,166,513.00	$	347,209.42
Sixth Renewal Period
46-50	$	4,374,838.65	$	364,569.89
Seventh Renewal Period
5 1-55	$	4,593,580.58	$	382,798.38
Eighth Renewal Period
56-60	$	4,823,259.61	$	401,938.30
Ninth Renewal Period
61-65	$	5,064,422.59	$	422,035.22
Tenth Renewal Period
66-70	$	5,317,643.72	$	443,136.98

B.All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D. It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Prem ises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water,

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sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the greatest extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall aris e during the Term is hereby expressly provided to survive the expiration of the Term or early termination of this Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or otherwise affected by any law or regulation now or hereafter applicable to the Demised Premi ses or any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payment of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents. For the avoidance of doubt, Tenant shall be responsible for all costs, expenses and obligations of Landlord in that certain Lease (as amended or otherwise modified from time to time, the “Ground Lease”) dated as of August 7, 1987 by and between 7 Horizon Corp. and Pathmar k Stores, Inc. f/k/a Supermarkets General Corporation, as affected by that certain Declaration of Easement dated August 7, 1987, as further affected by that certain Letter Agreement dated March 28, 1990, as further affected by that certain Assignment of Lessor’s Interest in Lease dated March 29, 1990, as further affected by that certain Renewal Notice dated July 25, 2007, as further amended by that certain First Amendment to Lease dated September 10, 2010.

E. If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

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6.USE AND OCCUPANCY.

A.The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities A ct of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor. Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Dem ised Premises contrary to any law or in a manner likely to create any nuisance. It is intended that Tenant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to which it has g iven its consent, and to take all other action, in order to effectuate the same, all at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land, or (iii) materially and adversely affects the Shopping Center including without limitation any other tenant of the Shopping Center. Notwithstanding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Premises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortg agee as defined below).

C.The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s

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intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

7.TAXES.

A.Definitions

(1)“Taxes” means all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requirements, orders, directi ves, rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined). Taxes shall exclude, without limitation, any income, franchise, gross receipts, corporation, capital levy, excess profits, revenue, rent, rollback, inheritance, devolution, gift, estate, payroll or stamp tax by whatsoever authority imposed or howsoever designated or any tax upon the sale, transfer and/or assignment of Landlord’s title or estate.

(2)“Tax Year” shall mean the real estate fiscal tax year designated by the local taxing authorities.

(3) “Proportionate Share” as used in this Lease shall be a fraction, the numerator of which shall be the total ground floor area of Tenant’s Demised Premises as set forth in Section 2(A) and the denominator of which shall be the total floor area of such Demised Premises and all other tenant space in the Shopping Center. The parties agree that as of the Commencement Date, Tenant’s Proportionate Share of Taxes is 79.64%.

B. Beginning on the Commencement Date, for each Tax Year during the term of this Lease, Tenant shall pay to Landlord Tenant’s Proportionate Share of Taxes monthly in advance in amounts reasonably estimated by Landlord in the same manner as Tenant pays Common Area Costs under Exhibit I. No later than thirty (30) days after the due date for

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payment of Taxes, Landlord will send to Tenant a receipted tax bill or other evidence reasonably indicating Taxes have been paid. If any additions or deletions of other tenant space in the Shopping Center have been made, then Landlord will also send Tenant a statement setting forth in reasonable detail the calculation of Tenants Proportionate Share. If, by law, any Taxes may, at the option of the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance thereof), Landlord shall exercise the option to pay the same in installments and any interest charged thereon by the taxing authority shall also then be included in the Taxes for which Tenant is obligated to reimburse Landlord.

C.Any Taxes for a real estate fiscal tax period, a part of which is included within the term of this Lease (including any Renewal Periods) and a part of which is included in a period of time before pr after Term shall be equitably adjusted between Landlord and Tenant. Landlord shall timely file for and seek to obtain any and all tax abatements Landlord reasonably determines are available as a result of any subsequent re-development of the Shopping Center. Any such re-development shall be consistent with the terms and provisions of this Lease.

D.Landlord shall promptly notify Tenant of any increase in real estate assessment, tax rate and/or Taxes. Tenant may at its option, and at its cost and expense, in its own name and/or in the name of Landlord protest, appeal or institute such other proceedings as it may consider appropriate to effect a reduction or abatement in such real estate assessment, tax rate, or Taxes. Landlord shall fully cooperate with Tenant and in furtherance of the foregoing, shall, without limitation, furnish on a timely basis, such data, documents, information and assistance and make such appearances as may be required by Tenant. Landlord agrees to execute all necessary instruments in connection with any such appeal or other proceedings. If any such proceeding may only be instituted and maintained by Landlord then Landlord shall do so at the request of Tenant. Landlord shall not settle any such appeal or other proceeding without obtaining Tenant’s prior written approval in each instance, such approval not to be unreasonably withheld, conditioned or delayed.

E.In the event a refund is obtained for any Tax Year in which Tenant paid Tenant’s Proportionate Share of Taxes, Landlord shall promptly pay Tenant its proportionate share of such refund net of the reasonable expenses incurred in obtaining such refund. If Tenant has filed for and obtains such refund it may also deduct all reasonable expenses incurred in doing so from such refund and pay over the balance of such refund promptly to Landlord.

F.In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be nec essary so that there shall at all times be sufficient funds in escrow to pay such charges.

8. SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply

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with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to include any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant’s personal property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports (including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises, except that Tenant shall not be obligated to make any of the foregoing arising out of or in any way connected with (1) fire or other insured casualty Landlord is required to restore under Sectio n 26, or (2) the negligence of Landlord, its agents, employees, or contractors. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in compliance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment exclusively serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, and window caulking. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.INSURANCE.

A.Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and

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all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.

C.Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

D.Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policies of insurance required to be carried by Tenant.

E.Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F.If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12. REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, if the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contest (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

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13.ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with the making of Alterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that res ults from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and the addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Building.

14.ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.UTILITIES.

A.Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16. SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof,

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provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged and delivered by such Fee Mortgagee to Tenant. If the Fee Mortgagee requires that this Lease have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fee Mortgagee an agreement acknowledging such priority.

17. TRADE FIXTURES.

A.All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the Demised Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to ex ecute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord and any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment for purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have any right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called th e “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured Party at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C.All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises

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shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke, chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A.Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Leas e or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s consent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee.

C. If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlord in writing within thirty (30) days after receipt by the Original Tenant of L andlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if applicable) upon all of the same terms and conditions of this Lease as it may have been amended by agreement between Landlord and Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease as theretofore amended, the Original Tenant shall not have the foregoing option.

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D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test is met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shall reasonab ly cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee).

19.TITLE AND AUTHORITY.

A.Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, La ndlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will no t violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of its property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property, except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20. QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and

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privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or implied.

21.UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed by the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance of monetary obligations.

22.END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (30) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.LANDLORD’S DEFAULT.

A. Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

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B. In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24.ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than su ch insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tenant does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold t he Demised Premises as if this Lease had not been made; and Tenant waives the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of

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Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5) days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B.After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the commencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be p aid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C.Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as se t forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D. Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (1 1/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the

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Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E. The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any time the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater than the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accorda nce with generally accepted accounting principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A. In the event of any damage or destruction by fire, the elements, or casualty insured under casualty insurance Landlord is obligated to carry under Exhibit G (hereinafter called “Destruction”) to all or any part of the Improvements including but not limited to those portions, if any, of the Common Area as is insurable under such insurance, Landlord shall

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commence promptly, and with due diligence continue subject to Section 21, to restore same to substantially the same condition as existed immediately preceding the Destruction to the extent permitted by applicable law, the availability of insurance proceeds (so long as Landlord has maintained the casualty insurance Landlord is obligated to carry under Exhibit G) and except as otherwise provided in this Section. If the Destruction is partial, Landlord shall complete the restoration within two hundred seventy (270) days after the Destruction subject to Section 21. If the Destruction is total, Landlord shall complete the restoration within eighteen (18) months after the Destruction, subject to Section 21. If the Destruction is to the Demised Premises and is total, then Tenant shall have the right to request that Landlord to make changes to the Tenant’s Building within one (1) mo nth after such Destruction as are reasonably and mutually agreed to by Landlord and Tenant (which changes may not expand the footprint of Tenant’s Building unless Landlord and Tenant so agree and agree to such extra rent therefore, such agreement to be in the form of an amendment to this Lease) and provided that Tenant deposits with Landlord at the time of commencement of such restoration work the extra cost reasonably estimated to Landlord of the design and construction of such Tenant requested changes.

B.If, as a result of any Destruction, (1) fifty (50%) percent or more of the total floor area of the Tenant’s Building is damaged, destroyed or, in Tenant’s reasonable opinion, rendered untenantable when less than two (2) years remain under the term of this Lease and, if said term shall have been extended, then this provision shall apply only to the last two (2) years of the then existing Renewal Period, or (2) Landlord refuses to restore because of the non-availability of insurance proceeds, then Landlord or Tenant may elect to terminate this Lease by giving notice to the other of such election on or before the date which is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expire and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant upon demand. Landlord’s notice of termination hereunder shall be null and void if (x) in the case of (1) above, Tenant, within thirty (30) days after receipt of such notice from Landlord, is then permitted by the terms of this Lease to give, and shall give, notice of the exercise of an option to extend the term for the next succeeding Renewal Period; or (y) in the case of (2) above, Tenant , within thirty (30) days after receipt of such notice from Landlord, elects, at its sole option, to receive an assignment of any available insurance proceeds and restore the Demised Premises at Tenant’s sole cost.

C.If, as a result of any Destruction, Tenant loses the use of the whole or any part of the Tenant’s Building or the whole or any part of the Common Area, Fixed Annual Rent and Additional Rent shall nevertheless continue to be paid hereunder, it being agreed that Tenant may insure against any such loss of business and Landlord shall have no such insurance obligation.

D. Insurance proceeds allocable to any partial or total Destruction of Tenant’s Building shall be deposited in trust with a bank or trust company acceptable to Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee on the Shopping Center shall be a bank, trust company or insurance company, or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and

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disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures and as otherwise required by this Lease.

27. EMINENT DOMAIN.

A.In the event of a taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter called “Taking”) of the entire Tenant’s Building, then (1) this Lease and the term hereof shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of the Taking, and (2) any Fixed Annual Rent and Additional Rent paid for a perio d after such date of termination shall be refunded to Tenant upon demand.

B.1. In the event of a Taking of any part of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Shopping Center or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Shopp ing Center on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of termination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant upon demand.

2. If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be paid to and used by Landlord for restoration as hereinafter set forth and Landlord shall promptly commence and with due diligence continue to restore the portion of the Common Area and the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking, subject to applicable law, Section 21 and the Taking proceeds received by Landlord. If the Taking occurs to Tenant’s Building, Tenant shall have the same right to request changes to the Tenant’s Building in the course of such restoration as Tenant has in Section 26. Landlord shall complete the restoration within two-hundred seventy (270) days after the Taking subject to Section 21. Taking proceeds shall be paid, held and disburs ed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C. If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and

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specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any damages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Landlord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

28.THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcement of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30. ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid

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or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one copy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified mail, return receipt requested, postage pr epaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

32.BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen ’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services provided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and Landlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34. DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tenant shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

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35.ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost a nd expense, in its own name and/or in the name of Landlord, appear in any such proceeding. Landlord shall fully cooperate with Tenant (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, make such appearances and furnish such information as may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

36.ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4) the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5) the Toxic Substances Control Act, and any amendments thereto and any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Shopping Center prior to the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Shopping Center prior to the Commencement Date; provided, however, that Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties.

C. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials brought on or migrating from the Demised Premises after the Commencement Date, and Tenant shall be responsible for all Hazardous Materials brought onto the Shopping Center after the Commencement Date by Tenant or persons acting by, through or under Tenant. Except to the extent Tenant is required to do so under this Section 36, Landlord, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be

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responsible for all Hazardous Materials except to the extent Tenant is required to do so under this Section 36.

D.Landlord and Tenant shall provide each other with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof.

E.If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Demised Premises or Hazardous Materials activities have taken place on the Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, r epresentations and the like from time to time at Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitation all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to its obligations under this Section 36 (and for these purposes, the loss indemnified shall include without limitation any costs of investigation or remediation, and any claim of personal injury or property damage to any person);. The covenants of this Section shall survive the Term. Tenant shall from time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A. Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and interests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Leas e. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empowered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than

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$100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B. If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1)There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

(2)Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mortgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

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(5)If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgag ee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7) Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such proceeding and be made a party to such proceeding, and the parties hereby consent to such intervention.            Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38. INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employees, (“Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whole or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any pe rson or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the covenants of this Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense

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of all of the foregoing matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their managers, members, directors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to levy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of their interest in the Demised Premises. In no event shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

40.BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross s ales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fiscal year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance with the terms of Exhibit K and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit K (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference,

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presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exerci se of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

46.CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party& #146;s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or termination notice shall not be deemed a waiver of such notice.

48.ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease

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(including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs and other usual costs of litigation of this type) incurred by such prevailing party.

49.WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50.MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and deliver ed by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord or Tenant as well as invitees or independent contractors of Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s approval or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notic es, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Le ase, and there are no warranties or representations other than those expressly set forth in this Lease. Without

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limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, Tenant from time to time will confirm such matters directly with such Fee Mortgagee.

51.COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.EXHIBITS. The exhibits attached to the Lease shall be deemed to be incorporated into this Lease as if set forth hereon, and where terms of any Exhibit conflict with the terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

53. INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit J attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control.

[SIGNATURE PAGE FOLLOWS]

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	IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective Date.
WITNESS:
		WE APP OZONE PARK LLC, a Delaware limited liability company
Name:		By:
		Name:
		Title:
WITNESS:
		PATHMARK STORES, INC., a Delaware corporation
		By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Vice President and Secretary

Signature Page to Lease By and Between
WE APP OZONE PARK LLC and PATHMARK STORES, INC.

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B1

LEGAL DESCRIPTION OF THE LAND

BLOCK 9027 LOT 11 AND BLOCK 9028 LOT 1 ON THE TAX MAP OF QUEENS COUNTY

Parcel 1 and 2 (Composite Description)

All that certain plot, piece or parcel of land with the buildings or improvements thereon, erected, situate, lying and being in the Borough and County of Queens, City and State of New York, bounded and described as follows:

BEGINNING at the corner formed by the intersection of the northwesterly line of 95th Avenue (a/k/a University Place, f/k/a Chichester Avenue) (60 feet wide) with the southwesterly line of 93rd Street (a/k/a Clinton Place, f/k/a Woodhaven Avenue) (60 feet wide) and from said point of BEGINNING;

RUNNING THENCE along said northwesterly line of 95th Avenue, South 40 degrees 26 minutes 58 seconds West, a distance of 299.96 feet to a point;

THENCE along the dividing line between Lot 1, Block 9028 and Lot 51 (n/f reputed owner 7 Horizon Corp.), Block 9027, the following three (3) courses and distances:

1.NORTH 49 degrees 33 minutes 02 seconds West, a distance of 74.03 feet to a point;

2.THENCE South 40 degrees 26 minutes 58 seconds West, a distance of 3.85 feet to a point;

3. THENCE North 49 degrees 33 minute 02 seconds West, a distance of 24.97 feet to a point;

THENCE along the dividing line between Lot 11, Lot 51 and Lot 65 (n/f reputed owner 7 Horizon Corp.), Block 9027, South 40 degrees 26 minutes 58 seconds West, a distance of 466.97 feet to a point;

THENCE along the dividing line between Lot 11 and Lot 80 (n/f reputed owner Realex Development Corporation) and Lot 8 (n/f reputed owner Sutton Associates, Inc.), Block 9027, North 49 degrees 33 minutes 02 seconds West, a distance of 301.65 feet the southeasterly line of Atlantic Avenue (LIRR division, 120.01 feet wide);

THENCE along said southeasterly line of Atlantic Avenue, North 40 degrees 26 minutes 58 seconds East, a distance of 50.48 feet to a point;

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THENCE along the dividing line between Lot 11 and Lot 102 (n/f reputed owner Jack Sloane), Block 9027, the following five (5) courses and distances:

1.SOUTH 49 degrees 33 minutes 02 seconds East, a distance of 38.53 feet to a point;

2.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 19.75 feet to a point;

3.THENCE South 49 degrees 33 minutes 02 seconds East, a distance of 15.00 feet to a point;

4.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 45.00 feet to a point;

5. THENCE North 49 degrees 33 minutes 02 seconds West, a distance of 15.00 feet a point;

THENCE continuing along the dividing line between Lot 11, Lot 102 and Lot 12 (n/f reputed owner Plainbridge, Inc.,) Block 9027, North 40 degrees 26 minutes 58 seconds East, a distance of 314.94 feet to a point;

THENCE continuing along the dividing line between Lot 11 and Lot 12, Block 9027, the following four (4) courses and distances:

1.SOUTH 49 degrees 33 minutes 02 seconds East, a distance of 11.67 feet to a point;

2.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 14.00 feet to a point;

3.THENCE North 49 degrees 33 minutes 02 seconds West, a distance of 11.67 feet to a point;

4.THENCE North 40 degrees 26 minutes 58 seconds East, a distance of 66.31 feet to a point;

THENCE along the dividing line between Lot 1, Block 9028 and Lot 12, Block 9027, North 49 degrees 33 minutes 02 seconds West, a distance of 38.53 feet to a point of the aforementioned southeasterly line of Atlantic Avenue;

THENCE along said southeasterly line of Atlantic Avenue, North 40 degrees 26 minutes 58 seconds East, a distance of 260.30 feet to a point on the aforementioned southwesterly line of 93rd Street;

THENCE along said southwesterly line of 93rd Street, South 49 degrees 33 minutes 02 seconds East, a distance of 400.65 feet to the corner aforesaid, the point or place of BEGINNING.

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Together with the benefit and burden of that certain Declaration of Easement by Plainbridge, Inc. dated as of 1/11/1996 recorded 2/16/1996 in Reel 4278 Page 358. (affects Parcels 1 and 2)

BLOCK 9027, LOT(S) 51 AND 65 ON THE TAX MAP OF QUEENS COUNTY

Parcel 3

ALL that certain lot, piece or parcel of land, situate, lying and being at Woodhaven in the Fourth Ward of the Borough and County of Queens, City and State of New York, bounded and described as follows:

BEGINNING at a point on the northerly side of 95th Avenue, formerly University Place and Chichester Avenue distance 39.66 feet westerly from the corner formed by the intersection of the northerly side of 95th Avenue with the former westerly side of 92nd Street, discontinued and closed, (formerly Bigelow Avenue or Place);

RUNNING THENCE northerly at right angles to 95th Avenue, 74.03 feet;

THENCE westerly and parallel with 95th Avenue, 3.85 feet;

THENCE northerly at right angles to 95th Avenue, 24.97 feet;

THENCE westerly parallel with 95th Avenue, 466.97 feet;

THENCE southerly at right angles to 95th Avenue and part of the distance through a party wall, 99 feet to the northerly side of 95th Avenue;

THENCE easterly along said northerly side of 95th Avenue, 470.82 feet to the point or place of BEGINNING.

ALL the herein distances and dimensions being according to the United States Standard of Measurement.

Together with the benefit and burden of that certain Declaration of Easement by and between Supermarkets General Corporation and 7 Horizon Corp., dated as of August 7, 1987 and recorded November 17, 1987 in Reel 2494, Page 1380. (affects Parcels 1, 2 and a portion of Parcel 3)

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1.Taxes, tax liens, tax sales, water rates, sewer rents and assessments, not yet due and payable.

2.Road Closing Waiver and Easement Agreement dated 8/2/84 between Supermarkets General Corporation and the City of New York recorded 10/16/85 in Reel 1942 cp 943.

3.Reservation of a permanent perpetual easement contained in a deed between The City of New York and Supermarkets General Corporation dated 1/11/85 recorded 3/25/86 in Reel 2051, Page 235.

4.Declaration of Easements by and between Supermarkets General Corporation and 7 Horizon Corp., dated as of 8/7/87 recorded 11/17/87 in Reel 2494, Page 1380.

5.Grant of Easement by and between Supermarkets General Corporation and The Consolidated Edison Company dated 8/9/84 recorded 1/13/87 in Reel 2272, Page 2056.

6.Declaration of Easement by Plainbridge, Inc., dated as of 1/11/96 recorded 2/16/96 in Reel 4278, Page 358.

7.Parking, Ingress and Egress Easement dated as of 11/26/08 by Plainbridge, Inc., converted into Plainbridge LLC on 4/18/01 and Clocknorse Realty LLC recorded 10/27/09 as CRFN 2009000351215.

8.Grant of Easement by Supermarkets General Corporation to the Brooklyn Union Gas Company dated 8/9/84 recorded 3/20/86 in Liber 2046 cp 358.

9.Terms and Condition of an unrecorded lease dated 8/12/85 and between Supermarkets General Corporation and S.L.G. Burger as amended by the unrecorded First Amendment of Lease dated as of 1/5/99 by and between Pathmark Stores, Inc., (formerly known as Supermarkets General Corporation and Atlantic Restaurant Associates, Inc., (successor by merger to S.L.G. Burger, Inc., as evidenced by a Memorandum of Lease between the same parties dated as of 1/21/99 recorded 3/1/99 in Reel 5130 Page 2052 as amended by an unrecorded Amendment of Lease between the same parties dated as of 5/1/06 as evidenced by a Modification of Memorandum of Lease dated as of 8/28/07, between the same parties, recorded 10/1/07 as CRFN 2007000499568.

10.UCC Financing Statement with 7 Horizon Corp, as Debtor, New York Community Bank, as Secured Party filed as No. 02Q00781 on 1/25/02 continued by CRFN200600063 1285 on 11/14/06. NOTE: This affects the fee interest in Parcel 3 only.

11.Terms and conditions of an unrecorded Lease dated as of August 8, 1987 between 7 Horizon Corp., as Landlord and Supermarkets General Corporation, as Tenant as

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evidenced by a Memorandum of Lease between the same parties dated as of August 7, 1987 recorded November 17, 1987 in Reel 2949 Page 1373, as amended by an unrecorded First Amendment to Lease dated as of September 10, 2010 by and between 7 Horizon Corp., Landlord and Pathmark Stores, Inc., Tenant, as affected by an Assignment and Assumption of Lease by and between 7 Horizon Corp., as Landlord, Pathmark Stores, Inc., as Assignor and WE APP WILMINGTON LLC, as Assignee dated            and recorded                          in Reel       , Page       .

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: $325,000.00

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or (iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If any such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                       2010, by and among                       , a                       , and its successors and assigns, having an office at                                 (hereinafter together with its successors and assigns called “Mortgagee”), WE APP Ozone Park LLC, a Delawa re limited liability company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

WITNESSETH:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                       evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November      2010 and amended by [     ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November         2010 was recorded on November       , 2010 in the                       in Book              , Page              ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.Mortgagee hereby consents to and approves the Lease.

2.Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.Tenant certifies that the Lease is presently in full force and effect.

4.Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed give n in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

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A.Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or t o reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlord expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any p ayment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually received by Mortgagee or if such prepayment shall have been expressly approved of in writing by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its abil ity to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

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direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Administration of Tenant, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other addresses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:
	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

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	LANDLORD:
	WE APP OZONE PARK LLC, a Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a Delaware corporation
Name:
	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

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WITNESS:

MORTGAGEE ACKNOWLEDGMENT

STATE OF                     )

SS:

COUNTY OF                 )

ON THIS          day of            2010, before me, the subscriber, personally appeared                   to me known, who being by me duly sworn, did depose and say that he is                of                  the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the se al affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this         day of                    2010, before me, the undersigned notary public, personally appeared                              , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                of WE APP Ozone Park LLC.

Notary Public

My Commission Expires:

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TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS                   day of                   , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

378

EXHIBIT E

KEY NO:                                                                                                                            

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP OZONE PARK LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

WITNESSETH:

1.For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 62,668 square feet of space (the “Building), as more particularly shown on the site plan attached hereto as Exhibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the State of New York, and is in no way intended to

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change, alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP OZONE PARK LLC, a
	Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	PATHMARK STORES, INC., a
	Delaware corporation
Name: Craig H. Feldman	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

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EXHIBIT A

DEMISED PREMISES

381

EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

382

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this            day of November 2010, before me, the undersigned notary public, personally appeared                                , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                      of WE APP Ozone Park LLC.

Notary Public

My Commission Expires:

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS             day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

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EXHIBIT F

UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 9210 Atlantic Avenue, Queens, New York, with WE APP Ozone Park LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafte r does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant’s performance as required by the terms of the Lease. Guarantor also waives, unless and until all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) t he release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whether made with or without notice to Guarantor, including without limitation any impairment, modification, change, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

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bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guaran tor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of all Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amount then due on this Guaranty.

4.Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with t ravel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to enforce any of its rights, remedies or powers against or in respect of either or both Tenant or Guarantor (whether or not suit is instituted in connection with such efforts).

5. Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions thereof will constitute a default under or result in the creation of any l ien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

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6.This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, approvals and all other documents relating hereto may be reproduced by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease . Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involving any matter in any way arising out of or relating to this Guaranty or the Lease.

8. Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

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Landlord:

WE APP Ozone Park LLC

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303 Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November         , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC
	TEA COMPANY, INC., a Maryland corporation
Name: Craig H. Feldman	By:
	Name: Christopher W. McGarry
	Title: Senior Vice President

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EXHIBIT G

INSURANCE

1.INSURANCE.

A. Tenant Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear), and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied through a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(3) Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

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(3) claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

B.Landlord Coverage

1. Landlord agrees to maintain insurance policies providing against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Shopping Center. The policies covering the Demised Premises required under this Section 13 shall contain the following endorsements:

(a) An endorsement providing for thirty (30) day notice of cancellation of insurance to all who are or become additional insureds as required under this Lease;

(b)An endorsement naming Tenant [and any future occupant(s) of the Demised Premises designated by Tenant] as an additional insured; and

(c) An endorsement whereby insurer acknowledges that Landlord has waived any and all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and their agents and employees for damage or destruction to any or all of the Improvements including, without limitation, Tenant’s Building, whether or not caused by acts or negligence of Tenant or said occupant(s) or any of their agents or employees.

All policies of insurance required under this Section shall be for the full replacement value of Tenant’s Building and other Improvements required to be insured hereunder. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any mortgage to which this Lease is subordinate so long as such holder and future holders of such mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

2. Landlord shall maintain at its own cost and expense public liability insurance for the Common Areas having minimum limits of coverage of Five Million ($5,000,000.00) Dollars per occurrence combined single limit for bodily injury, personal injury and property damage. Tenant shall be named as an additional insured

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C. General Requirements. All policies of insurance required under this shall be written and signed by solvent and responsible insurance companies and with insurers having a minimum A.M. Best rating of at least A/X and authorized to do business in the jurisdiction wherein the Shopping Center is located. Each party shall provide the other with certificates of such party’s insurers evidencing the insurance coverage required under this Section. Each party shall deliver to the other renewal policies or certificates thereof not later than thirty (30) days prior to the expiration of any policies which such party is required to carry hereunder. Notwithstanding anything to the contrary contained herein, if any party required to carry insurance hereunder has a Tangible Net Worth in excess of One Hundred Million ($100,000,000.00) Dollars, then such insura nce may be carried in whole or in part under a program of self-insurance.

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EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark.

“Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $81,000,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise would be made at, in, on, about, from or with respect to the Premises, nor the amount of any ca sh

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or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior month to Landlord without demand, provided that if such amount exceeds the Percentage Rent

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that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calendar year included in the Term.

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EXHIBIT I

SPECIAL SHOPPING CENTER PROVISIONS

1. REMAINDER OF THE IMPROVEMENTS.

A.Landlord has induced Tenant to execute and deliver this Lease by making the following warranties, representations and agreements: (1) the Shopping Center, as shown on Exhibit A, shall not be modified in any material manner whatsoever without first obtaining Tenant’s consent thereto which consent shall not be unreasonably withheld, conditioned or delayed if such modification does not materially and adversely affect Tenant; (2) all buildings in the Shopping Center shall at all times be located entirely within the building sites shown on Exhibit A and the perimeter lines of such building sites shall be deemed to represent maximum building limits and no buildings shall extend beyond said limits or be const ructed in whole or in part on any other portion of the Shopping Center without Tenant’s consent, which consent shall not be unreasonably withheld, conditioned or delayed if such modification does not materially and adversely affect Tenant; (3) the exterior of buildings for other tenants in the Shopping Center shall be similar in appearance to and harmonious with the exterior of the Tenant’s Building to the extent existing on the Commencement Date; and (4) except for the Tenant’s Building, no improvement or structure in the Shopping Center shall contain more than one (1) story or contain a basement or mezzanine from which retail sales are conducted to the public.

B.Landlord shall use commercially reasonable efforts not permit the Common Area to be used for parking or any other purpose by any occupant or occupants of adjacent or contiguous property (which includes property which would be adjacent or contiguous to the Common Area but for any intervening road, street, highway or waterway) or by customers or invitees of such occupant or occupants, and upon request of Tenant, Landlord shall erect (and maintain as part of the Common Area and as a Common Area Charge) a fence or fences or any other barriers meeting Tenant’s reasonable requirements to separate the Common Area from any such adjacent or contiguous property. Tenant shall pay its Proportionate Share of the cost of construc ting said fence, fences or other barrier.

C.There shall be no flashing or animated sign, roof or free-standing sign or exposed neon sign in the Shopping Center other than any signs which exist on the Commencement Date or may be permitted under any Shopping Center leases existing on the Commencement Date. Except for signs which exist on the Commencement Date or may be permitted under any Shopping Center leases existing on the Commencement Date, all exterior signs shall be affixed parallel to, and shall not project more than twelve (12) inches from any building or canopy, except that Tenant shall have a free-standing sign or signs as hereinafter provided and any other sign provided for in the Criteria Drawings. There shall be no restrictions with respect to Tenant&# 146;s interior signs. Tenant may remove any or all of its signs at or prior to the Expiration Date.

D.All portions of water, gas, electricity, sewage and other utility lines within the Shopping Center and not within the exterior walls of any structure or enclosed area may be installed above ground provided Landlord first obtains Tenant’s consent to the location and height thereof such consent not to be unreasonably withheld, conditioned or delayed.

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2. COMMON AREA.

A.Landlord shall, at its sole cost and expense but as a Common Area Charge, keep and maintain the Common Area in good condition and repair, including but not limited to, re-striping; repairing and replacing paving and the sub-strata thereof; keeping the Common Area properly policed, drained, free of snow, ice, water, rubbish and obstructions, and in a neat, clean, orderly, and sanitary condition; keeping the Common Area suitably lighted in accordance with the lighting facilities existing on the Commencement Date during and for appropriate periods [in any event not less than one (1) hour] before and after Tenant’s business hours; maintaining signs, markers and other means and methods of pedestrian and vehicular traffic control; and maintaining any existing plantings and landscaped areas.

B.Except as otherwise expressly provided herein, the parking spaces in the Common Area shall be used only for the parking of private vehicles of customers, invitees and employees of tenants of the Shopping Center and for no other purpose. The roads, streets and drives shall be used for pedestrian and vehicular traffic serving the Shopping Center and for no other purpose. Employees of the tenants of the Shopping Center shall not park their automobiles in the Common Area except in that portion thereof designated as Employee Parking and Landlord shall require all other tenants of the Shopping Center to use their best efforts to prevent any violation of this provision. Tenant shall use its best efforts to prevent any such vio lation by its employees.

C.Landlord shall not exact any charge or permit others to exact any charge for use of the Common Area from Tenant or its customers, invitees or employees or of any other tenant or from any other parties using the Shopping Center in accordance with the terms of this Lease.

D.There shall be no advertisements or signs in the Common Area except the sign pylon or pylons and/or the announcement signs hereinbefore provided for and traffic control signs and any other signs existing on the Commencement Date. No merchandise shall be sold or displayed in the Common Area. Notwithstanding the foregoing, any occupant of the Demised Premises may use the sidewalk within the Shopping Center and immediately adjacent to the Demised Premises for selling and for the storage of shopping carts, may erect a cart corral or similar device thereon and may use said sidewalk for any other lawful purpose or purposes.

E. Landlord shall indemnify and hold harmless Tenant, its employees and agents from any and all claims, causes of action, damages, expenses and liability, including reasonable attorney’s fees, sustained or incurred by any persons (other than Tenant, its employees and agents) which are based upon or arise out of illness or injury, including death of any person or property damage to any property and which arise from, or in any manner grow out of, any negligent act or omission of Landlord, its agents, partners or employees in the Common Area to the extent not due to the negligence of Tenant, its agents, partners or employees. Landlord shall promptly respond to and assume the investigation, defense and expense of all claims and causes of action arising out of or in connection with occurrences within the Common Area as provided above. Tenant may, at its sole cost and expense, join in such defe nse with counsel of its choosing.

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3. COMMON AREA COSTS.

A.“Common Area Costs” shall mean all amounts paid or incurred by Landlord and its designees for maintenance and repair of the Common Areas (meaning all parking areas, walkways and driveways of the Shopping Center and related lighting fixtures, drainage and other facilities), including, without limitation, cleaning, snow and ice removal, planting, replanting and replacing flowers and landscaping, maintenance, repair and replacement of such areas, lighting, premiums for insurance and workers’ compensation insurance, unemployment, social security and salaries (including employee benefits) of any property management personnel directly and actually performing services in connection with the Common Areas (but there sha ll be excluded salaries of other office personnel such as secretaries and accountants, and the cost of all work done at Landlord’s main office), sales and use taxes on material, equipment, supplies and services purchased for maintenance of the common areas, fees for required licenses and permits, supplies, operation of loudspeakers and any other equipment supplying music to the common areas or any part thereof, operation of public toilets, if any, policing the Common Areas (including costs relating to controlling traffic thereto and therefrom) and affording protection thereof, reasonable depreciation of movable equipment used in the operation, reasonable rental of movable equipment used in the operation, repair and maintenance of the common areas (but in any such case without duplication as to depreciation charges on any such movable equipment), and all other similar direct costs properly chargeable to operation of the common areas. Common Area Costs shall not include the cost of maintaining, repairing or replacing any building in the Shopping Center. If Landlord, in its reasonable discretion, installs a new or replacement capital item to the common areas, the cost of such item together with an interest factor at three percentage points above the then “Prime Rate” (as published in the Wall Street Journal or comparable financial publication reasonably selected by Landlord) at the time such cost is incurred, shall be considered as though such cost and interest comprised a direct reduction loan amortizing over the useful life of such item, and the annual amortization amount shall be included in Common Area Costs. In addition, there shall be a five (5%) percent administrative fee payable to Landlord multiplied by all other Common Area Costs (excluding insurance and capital items) included within Common Area Costs.

B.Tenant’s annual pro-rata share of Common Area Costs (herein called “Tenant’s Common Area Charge”) shall be the product of Common Area Costs and Tenant’s Proportionate Share.

C. Landlord shall estimate Tenant’s Common Area Charge each year and l/12th of the amount so estimated shall be payable as Additional Rent on the first day of each calendar month in advance. Within 90 days after the end of each calendar year, Landlord shall furnish Tenant a statement (“CAM Statement”) in reasonable detail of the actual amount of Tenant’s Common Area Charge prepared in accordance with GAAP, and there shall be an adjustment between Landlord and Tenant, with payment as Additional Rent to, or repayment by, Landlord, as the case may be within thirty (30) days of Landlord’s statement, so that Landlord shall receive the entire amount of Tenant’s Common Area Charge for such period. All CAM Statements shall be accompanied by copies of all third party invoices and other supporting documentation.

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D.If Tenant is open for business during the period commencing at 1:00 P.M. and ending at 7:00 A.M. (herein called “Extended Period”), Tenant shall pay its proportionate share of the additional costs of operating the Common Area arising out of and directly attributable to the operation of the Common Area during the Extended Period. If any other tenants are operating during all or any part of the Extended Period, Tenant shall be responsible for payment of an amount equal to the product of (a) said additional costs and (b) a fraction, the numerator of which shall be the gross floor area of the Demised Premises, and the denominator of which shall be the total gross floor area of all premises (incl uding the Demised Premises) open during all or any part of the Extended Period, appropriately adjusted to reflect the number of hours that each business remains open during the Extended Period. Tenant’s share of said additional costs shall be paid to Landlord as Additional Rent together with the payment of Tenant’s Common Area Charge as set forth in this Exhibit, but none of said additional costs shall be included in Common Area Costs or Tenant’s Common Area Charge.

E.Tenant may at any time during the twelve (12) month period after the CAM Statement in question audit Landlord’s books and records pertaining to Common Area Costs. Landlord shall cooperate with Tenant and shall make all such books and records available to Tenant at Landlord’s offices or another place within the municipality where the Demised Premises are located. If any audit discloses that Tenant paid in excess of its Common Area Charge, Landlord shall pay such excess to Tenant within fifteen (15) days after Landlord’s receipt of Tenant’s demands therefor. If any error is in excess of three (3%) percent of the amount actually payable by Tenant, then Landlord shall pay Tenant the reasonable out-of-pock et cost of such audit within ten (10) days after Landlord’s receipt of Tenant’s demand therefore. As a condition of auditing Landlord’s books and records, Tenant shall represent to Landlord that the person conducting such audit is not being compensated on any contingency of percentage basis whereby the amount of such compensation is determined in whole or in part by any excess payments made by Tenant.

F. In the event that Landlord is required to maintain, repair or replace any gas, water, electric and other utility lines in the Common Area that exclusively serve the Demised Premises, then the cost of the maintenance, repair or replacement shall not be a Common Area Charge, but rather Tenant shall pay reimburse Landlord for all of such costs (i.e. one hundred percent (100%)) as Additional Rent within thirty (30) days following Tenant’s receipt of the invoice for same.

4. RESTRICTIVE COVENANT.

A. Subject to the leases of the existing tenants in the Shopping Center and all extensions or renewals thereof, and subject also to the exclusion of the Burger King premises immediately adjacent to the Demised Premises which shall not be subject to the provisions of this sentence prohibiting the sale of food including beverages and food for off-premises consumption, Landlord covenants and agrees that, except for the Demised Premises (and the foregoing), it shall not lease, rent or occupy or permit any premises in the Shopping Center to be occupied for the sale of food, including, but not limited to, beverages and pet food, for off-premises consumption, the sale of health and beauty aids and/or the sale of prescription drugs. Landlord further covenants and agrees that it shall not lease, rent or occupy or permit any premises in the Shopping Center to be occupied for any noxious or offensive use , for

397

manufacturing or for use as a restaurant, theater, bowling alley, funeral parlor, warehouse, office (except for such office or warehouse use as shall be incidental to a permitted retail use) or non-retail use (nothing herein intended to characterize the uses listed in this sentence as retail uses).

B. Landlord expressly agrees that the covenants contained in this Article shall run with the Land during the Term of the Lease, and Landlord agrees that the covenants contained above may be included in any memorandum of lease in form for recording.

398

EXHIBIT J

LOCAL LAW ADDENDUM

(Attached)

399

Lease Addendum (NY)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Ozone Park LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1.Construction Lien. Nothing in the Lease shall be deemed to constitute Landlord’s consent or request, express or implied, by inference or otherwise: (a) to any contractor, subcontractor, laborer, or material supplier for the performance of any labor or the furnishing of any materials for any improvement, alteration or repair of the Demised Premises; or (b) to subject the Demised Premises to any mechanic’s lien.

2.Maintenance of Property.

A.To the extent the Lease requires Tenant to maintain or repair any sidewalk, Tenant shall perform all obligations of Landlord (and shall indemnify Landlord in the manner provided in the Lease against any liability of Landlord arising) under New York City Administrative Code §2- 710 and -711.

B.Tenant shall not clean any window in or about the Demised Premises (or require, permit, suffer, or allow any window to be cleaned) from the outside in violation of New York Labor Law §202.

3.Landlord’s Remedies.

A.Notwithstanding anything to the contrary in New York Real Property Actions and Proceedings Law (N.Y. RPAPL) §711(2) or any other applicable law or rule of procedure, Landlord’s acceptance of any partial payment on account of rent, even if such payment has been acknowledged or receipted for in writing, shall not be deemed to constitute Landlord’s “express consent in writing to permit Tenant to continue in possession” as referred to in N.Y. RPAPL §711(2) unless Landlord’s written acceptance expressly states that: “Landlord consents to Tenant’s remaining in possession notwithstanding nonpayment of rent.” Any such part payment shall merely constitute a payment on acc ount and nothing more, and shall not limit any rights or remedies of Landlord.

B.Tenant expressly waives and releases, for itself and for any person claiming by, through or under Tenant, any rights that Tenant or such person may have under New York civil practice law and rules §220 1 (or any other law or rule of procedure, including any provisions of the New York real property actions and proceedings law), in connection with any holdover proceedings or other action or proceeding regarding this Lease, Tenant’s rights as a tenant of the Building, or Tenant’s possession of the Demised Premises.

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4.Casualty. The provisions of Article 26 of this Lease on destruction shall be deemed an express agreement as to damage or destruction of the Demised Premises by fire or other casualty. New York Real Property Law §227 (and any similar or successor statute), providing for such a contingency in the absence of an express agreement, shall have no application.

5.Redemption. Tenant specifically waives the right of redemption provided for in New York Real Property Actions and Proceedings Law §761, and any similar or successor statute.

6.Landmarks. Tenant acknowledges and agrees that it shall not seek or support a landmark designation, unless such landmark designation is specifically sought by Landlord, pursuant to the New York City Administrative Code §25-322 for the Demised Premises or any part of the Building.

7.Zoning Lot. Tenant acknowledges that Tenant has no rights to or interest in any development rights, “air rights,” rights to construct additional floor area, or comparable rights appurtenant to the Demised Premises. Tenant consents, without further consideration, to Landlord’s utilization or transfer of such rights in any manner. Tenant shall promptly execute and deliver any instruments that Landlord may reasonably request, including without limitation, instruments merging zoning lots, or waiving Tenant’s right to join in such instruments, to evidence such acknowledgment and consent. The provisions of this paragraph are and shal l be deemed to be and shall be construed as Tenant’s express waiver and release of any interest Tenant may have as a “party in interest” (as defined under the definition of “Zoning Lot” in § 12-10 of the New York City Zoning Resolution or any similar or successor statute) in the Demised Premises.

401

EXHIBIT K

Confidentiality Agreement

(Attached)

402

CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of             , 2010 (the “Effective Date”) by and between [TENANT], a                            , having an address at                                                        (“Company”) and                        &n bsp;   , a                            , having an address at                            (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently devel oped by Disclosee or its Representatives without reference to the Information.

3.In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey,

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Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

404

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:

[TENANT], a

By:

Name:

Title:

DISCLOSEE:

                                             , a

By:

Name:

Title:

405

EXHIBIT B-6

LEASE FORM FOR WILMINGTON, DE

406

KEY NO:

LEASE

BY AND BETWEEN

WE APP WILMINGTON LLC,
LANDLORD

AND

PATHMARK STORES, INC.,
TENANT

DEMISED PREMISES

AT

3901 LANCASTER PIKE, WILMINGTON, DELAWARE

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TABLE OF CONTENTS

		Page
1.	EXHIBITS	1
2.	DEMISED PREMISES	1
3.	TERM	2
4.	RENEWAL PERIODS	2
5.	RENT	3
6.	USE AND OCCUPANCY	5
7.	TAXES	7
8.	SIGNAGE	8
9.	TRUE LEASE	9
10.	REPAIRS	9
11.	INSURANCE	9
12.	REQUIREMENTS OF LAW AND FIRE INSURANCE	10
13.	ALTERATIONS	11
14.	ACCESS TO DEMISED PREMISES	11
15.	UTILITIES	11
16.	SUBORDINATION, NON DISTURBANCE AND ATTORNMENT	11
17.	TRADE FIXTURES	12
18.	ASSIGNMENT	13
19.	TITLE AND AUTHORITY	14
20.	QUIET ENJOYMENT	15
21.	UNAVOIDABLE DELAYS	15
22.	END OF TERM	15
23.	LANDLORD’S DEFAULT	16
24.	ADDITIONAL CHARGES	16
25.	TENANT’S DEFAULT	17
26.	DESTRUCTION	19
27.	EMINENT DOMAIN	20
28.	THIRD PARTY LITIGATION	21
29.	WAIVER OF DISTRAINT	21
30.	ESTOPPEL CERTIFICATES	21
31.	NOTICES	21

408

TABLE OF CONTENTS

(continued)

		Page
32.	BROKER	22
33.	LIENS	22
34.	DEFINITION OF LANDLORD	22
35.	ADJOINING OR ADJACENT PROPERTY	22
36.	ENVIRONMENTAL LAWS	23
37.	LEASEHOLD MORTGAGE	24
38.	INDEMNITY	26
39.	LIMITATION OF LANDLORD’S LIABILITY	26
40.	BOOKS AND RECORDS	27
41.	SATELLITE DISH	27
42.	NO PRESUMPTION AGAINST DRAFTER	27
43.	SUCCESSORS AND ASSIGNS; AFFILIATES	27
44.	CAPTIONS	27
45.	INVALIDITY OF CERTAIN PROVISIONS	27
46.	CHOICE OF LAW/JURISDICTION	28
47.	NO WAIVER	28
48.	ATTORNEY’S FEES	28
49.	WAIVER OF TRIAL BY JURY	28
50.	MISCELLANEOUS	28
51.	COUNTERPARTS	29
52.	INCORPORATION OF STATE LAW PROVISIONS	29

409

LEASE

THIS LEASE (this “Lease”), made as of November           2010 (the “Effective Date”), by and between WE APP WILMINGTON LLC, a Delaware limited liability company with an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”). This Lease is guaranteed by The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Guarantor”) pursuant to a guaranty of even date herewith (as the same may be amended, supplemented or modified from time t o time, the “Guaranty”).

WITNESSETH:

Landlord and Tenant covenant and agree as follows:

1.EXHIBITS. The following Exhibits are annexed hereto and made a part hereof:

A.Exhibit A, Site Plan of the Demised Premises;

B.Exhibit B1, Legal Description of the Land;

C.Exhibit B2, Existing Encumbrances on Land

D.Exhibit C, Remedial Work

E.Exhibit D, Form of Subordination, Non-Disturbance and Attornment Agreement;

F.Exhibit E, Memorandum of Lease;

G.Exhibit F, Form of Guaranty;

H.Exhibit G, Insurance Requirements;

I.Exhibit H, Percentage Rent;

J.Exhibit I, Local Law Addendum; and

K.Exhibit J, Confidentiality Agreement.

2.DEMISED PREMISES.

A. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) commonly known as 3901 Lancaster Pike Wilmington, Delaware and more particularly described on Exhibit B1 and the buildings and other improvements now or hereafter erected on the Land together with the benefit of and subject to any and all easements, appurtenances, rights and privileges and other matters of record now or hereafter arising including those described in Exhibit B2. The land is currently improved by an

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existing building consisting of approximately 48,622 square feet of space (the “Building”), as more particularly shown on the Site Plan attached hereto as Exhibit A. The Building and any other buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and any Improvements are hereinafter collectively called the “Demised Premises.”

B. Tenant or its Affiliates owned or leased the Demised Premises prior to their being purchased by Landlord. Landlord shall have no obligation or risk whatsoever with respect to the condition of the Demised Premises, Tenant taking the Demised Premises “AS IS, WHERE IS, WITH ALL FAULTS”. Tenant acknowledges that it has had full opportunity to inspect the Demised Premises with engineering and other consultants of its choice. Tenant’s commencing possession under this Lease shall be deemed an acknowledgment that the condition of the Demised Premises is satisfactory. Tenant further acknowledges that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties whatsoever concerning the Demised Premises, their condition or this Lease except as set forth in Section 19.

3.TERM.

A.The term of this Lease (“Term”) shall commence (the “Commencement Date”) on the Effective Date and shall continue to and include the date (the “Expiration Date”) that is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

B.The term “Lease Year” shall mean the following: the first Lease Year shall be the 12 month period commencing on the Commencement Date if the Commencement Date is the first day of a month, or on the first day of the month immediately following the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month; and each succeeding 12 month period thereafter shall be a Lease Year.

4. RENEWAL PERIODS. Tenant shall have the right and option to extend the Term of this Lease from the date upon which it would otherwise expire for ten (10) separate consecutive renewal periods of five (5) years each (each such period being hereinafter called a “Renewal Period”) upon the same terms and conditions as are herein set forth except the rent for such Renewal Period shall be as provided in Section 5 below; provided, however, that at the time of so electing to extend and also at the time any Renewal Period commences Tenant is not in default beyond any applicable notice and cure period, and this Lease is then in full force and effect. If Tenant fails timely so to exercise its option for any Renewal Period, time being of the essence, Tenant shall have no further extension rights hereunder. All references to the Term shall mean the Initial Term as it may be extended by any Renewal Period. If Tenant elects to exercise any one or more of said options to renew, it shall do so by giving written notice (“Renewal Notice”) of such election to Landlord at any time during the term of this Lease (including any Renewal Periods) on or before the date which is three hundred sixty five (365) days before the beginning of the Renewal Period or Renewal Periods for which the term hereof is to be renewed by the exercise of such option or options. If Tenant elects to exercise any one or more of said options to renew by serving a Renewal Notice in accordance with the foregoing, the

411

Term of this Lease shall be automatically extended for the Renewal Period(s) covered by the Renewal Notice without execution of an extension or renewal lease. If Tenant shall not have given notice of such election to Landlord by such date in respect of any Renewal Period, Landlord shall (unless notice shall have been given as hereinafter specifically permitted) give notice to Tenant that Tenant has failed to give notice of such election to Landlord (hereinafter called the “Option Notice”). Tenant’s time to give notice of such election shall continue until the date which is sixty (60) days after receipt of the Option Notice. Landlord shall not give the Option Notice prior to the date which is four hundred twenty-five (425) days before the Expiration Date. If Landlord shall not have given the Option Notice prior to the date which is four hundred twenty-five (425) days before the beginni ng of the next succeeding Renewal Period, the term of this Lease shall be extended beyond the Expiration Date to the date which is four hundred twenty-five (425) days after the date on which the Option Notice is given by Landlord.

5.RENT.

A. Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay Landlord for the Demised Premises, without previous demand therefor, fixed annual rent (“Fixed Annual Rent”) as follows:

Lease Year	Fixed Annual Rent		Fixed Monthly Rent
1-5	$	777,952.00	$	64,829.33
6-10	$	816,849.60	$	68,070.80
11-15	$	857,692.08	$	71,474.34
16-20	$	900,576.68	$	75,048.06
First Renewal Period
21-25	$	945,605.52	$	78,800.46
Second Renewal Period
26-30	$	992,885.79	$	82,740.48
Third Renewal Period
31-35	$	1,042,530.08	$	86,877.51
Fourth Renewal Period
36-40	$	1,094,656.59	$	91,221.38
Fifth Renewal Period
41-45	$	1,149,389.42	$	95,782.45
Sixth Renewal Period
46-50	$	1,206,858.89	$	100,571.57
Seventh Renewal Period
51-55	$	1,267,201.83	$	105,600.15

412

Eighth Renewal Period
56-60	$	1,330,561.92	$	110,880.16
Ninth Renewal Period
61-65	$	1,397,090.02	$	116,424.17
Tenth Renewal Period
66-70	$	1,466,944.52	$	122,245.38

B.All Fixed Annual Rent shall be payable by Tenant in equal monthly installments in advance on the first day of every calendar month during the Term of this Lease (and any Renewal Periods), and shall be payable at the office of the Landlord first above set forth or at such other address as Landlord shall have given in a notice to Tenant) in current U.S. currency by check drawn on a clearinghouse bank and payable directly to Landlord (or, if requested by Landlord from time to time by electronic fund transfer, to an account designated by Landlord). Rent for a part of a month shall be prorated on a daily basis and paid on the Commencement Date. Further, the rent for the first full month shall be paid on the Commencement Date.

C.Beginning on the Commencement Date and continuing throughout the Term, Tenant covenants and agrees to pay, without previous demand therefor, all sums other than Fixed Annual Rent due under or required to be paid by this Lease (all of the foregoing being “Additional Rent” regardless of however defined or described in this Lease).

D. It is the intention of the parties hereto that the Fixed Annual Rent payable hereunder shall be net to Landlord free of cost, charge, offset, diminution or other deduction, so that this Lease shall yield to Landlord the net Fixed Annual Rent specified herein during the Term of this Lease. Notwithstanding applicable law to the contrary and with the sole exception of those costs, expenses and obligations expressly stated in this Lease to be the sole responsibility of Landlord (or the responsibility of third parties as provided in Section 36C), all costs, expenses and obligations of every kind and nature whatsoever relating to this Lease, the Demised Premises or imposed on Landlord under applicable law either now existing or hereafter enacted and whether or not within the contemplation of the parties on account of this Lease, the Demised Premises or Landlord’s interest in the Demised Premises are assumed and shall be paid by Tenant when and as due as Additional Rent. Without limiting the generality of the foregoing, Tenant shall at its sole expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services supplied to the Demised Premises, insurance costs, amounts due under any title encumbrance matter described in Exhibit B2, and all costs of cleaning, maintaining, repairing and replacing the Demised Premises or any portion thereof and of complying with all laws now existing or hereafter enacted including all Environmental Laws (defined below). Any cost, expense or obligation directly relating to the Demised Premises that is not expressly declared in this Lease to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant’s sole expense, and to the great est extent permitted by law Tenant shall indemnify and defend Landlord against, and hold Landlord harmless from, the same, and Tenant’s liability for the payment and performance of such amounts and obligations that shall arise during the Term is

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hereby expressly provided to survive the expiration of the Term or early termination of this Lease. Fixed Annual Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty in Section 26 or condemnation in Section 27, Tenant shall in no event have any right to terminate this Lease, and any right so to terminate (or to abate, suspend, set off or otherwise deduct from Fixed Annual Rent or Additional Rent) under applicable law is hereby waived to the greatest extent permitted by law. It is the intention of the parties that the obligations of Tenant hereunder shall be separate and independent covenants and shall not be discharged or othe rwise affected by any law or regulation now or hereafter applicable to the Demised Premises or any other restriction on Tenant’s use, and that Fixed Annual Rent, Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected throughout the Term. Landlord, at its sole cost and expense, shall be responsible for the following: (i) payment of any amounts relating to Fee Mortgages or other encumbrances or liens created by Landlord, (ii) management fees, administrative costs, professional fees and any other costs incidental to its fee ownership of the Demised Premises; and (iii) and cost, expense, or liability resulting from the negligent or willful misconduct of Landlord, its employees or agents. For the avoidance of doubt, Tenant shall be responsible for all costs, expenses and obligations of Landlord in that certain Lease (as amended or otherwise modified from time to time, the “Ground Lease”) dated as of September 8, 1997 by and between Commonwealth Trust Co. and 909 Group, L.P., as amended by that certain Amendment of Lease dated February 28, 1979, as further amended by that certain Amendment of Lease dated December 11, 1979, as further affected by that certain Assignment of Lease dated November 29, 1994, as further affected by that certain Assignment of Lease dated June 11, 1980, as further affected by that certain Renewal Notice dated March 3, 1997, as further affected by that certain Renewal Notice dated January 31, 2002, as further affected by that certain Notice dated August 9, 2007, as further affected by that certain Notice dated February 6, 2009.

E. If any person (other than an Affiliate of the initial Guarantor (being The Great Atlantic & Pacific Tea Company, Inc.) or a successor by merger of acquisition) becomes an assignee of this Lease or sublets all or substantially all of the Demised Premises or otherwise becomes or is a Tenant under this Lease, such occurrence shall be a Percentage Rent Event and the provisions of Exhibit H shall immediately become applicable for the remainder of the Term.

6.USE AND OCCUPANCY.

A. The Demised Premises may be used and occupied for the operation of a supermarket, drugstore, automated teller machine, bank, all other uses customary and incidental to a supermarket and, so long as the Minimum Credit Test (defined in Section 25D) is then met, all other lawful purpose or purposes. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be obligated to open, to conduct or to remain open for the conduct of any business in the Demised Premises but shall nevertheless pay Fixed Annual Rent and all Additional Rent when and as the same is due. At all times Tenant shall comply with all laws, ordinances and bylaws, regulations, codes, (including, without limitation, the Americans With Disabilities Act of 1990, or “ADA”) permits, orders and conditions of any special permits or other governmental approvals (“law” or “laws”) applicable from time to time to the Demised

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Premises or Tenant or both, foreseen or unforeseen, and whether or not the same interfere with Tenant’s occupancy. Tenant shall procure all approvals, licenses and permits, in each case promptly giving Landlord true and complete copies of the same and all applications therefor. Tenant shall never overload any of the Building systems, including the floors and mechanical, electrical and structural systems, and shall also keep the Demised Premises equipped with appropriate safety appliances and comply with all requirements of insurance and of insurance inspection or rating bureaus. Tenant shall not itself, nor shall Tenant permit or suffer persons acting under Tenant to, either with or without negligence, injure, overload, deface, damage or otherwise harm the Demised Premises or any part thereof or use the Demised Premises contrary to any law or in a manner likely to create any nuisance. It is intended that T enant bear the sole risk of all present or future laws affecting the Demised Premises, and Landlord shall not suffer any reduction in any rent on account of the enforcement of laws.

B.Subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant shall have the right to enter into agreements with utility companies creating easements in favor of the utility companies as are required in order to service the Demised Premises. Also subject to Landlord’s consent, not to be unreasonably withheld, delayed or conditioned, Tenant may enter into reciprocal parking agreements and easements for ingress and egress as are required in order to service the Demised Premises and any adjoining or adjacent land designated by Tenant. Landlord covenants and agrees to execute any and all documents, instruments or certificates reasonably required in connection with such matters to wh ich it has given its consent, and to take all other action, in order to effectuate the same, all at Tenant’s cost and expense. In no event, however, shall Landlord be required to consent to nor shall Tenant have the power to enter into any easement or reciprocal parking agreement (i) that is for a term in excess of the term of this Lease (as the same may be renewed or extended) except for utility and access easements that may be perpetual or otherwise extend beyond the term of this lease, or (ii) that diminishes the economic value of the Land. Landlord further covenants and agrees, upon request of tenant, to convey without compensation therefor, insubstantial perimeter portions of the Land for highway or roadway purposes, to the state in which the demised premises are situate or any other municipal or governmental body, provided, however, that any such conveyance shall not constitute a taking (as defined in section 28 below) nor constitute grounds for tenant to terminate this Lease. Notwithsta nding anything to the contrary or otherwise set forth herein, any encumbrance on the Demised Premises shall be subject to any requirements imposed by any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee as defined below).

C.The provisions of this paragraph shall only apply if and only if the Minimum Credit Test is not met. If Tenant either gives Landlord written notice of Tenant’s intention to discontinue permanently the operation of its business in the Demised Premises or any part of the Demised Premises or discontinues the operation of its business in the Demised Premises or any part of the Demised Premises for a period of one (1) year for any reason (other than Destruction or Taking that pursuant to the applicable provisions of this Lease entitles Tenant to terminate this Lease), then Landlord may terminate this Lease as to the Demised Premises, or if applicable, the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations, by thirty (30) days’ written notice to Tenant of Landlord’s election to terminate this Lease (or, if

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applicable, Landlord’s election to terminate this Lease as to the part of the Demised Premises with respect to which Tenant has given notice of its intention to discontinue, or in which Tenant has discontinued, its operations). Tenant may override Landlord’s election only once by, as applicable, resuming operations of its business in the Demised Premises within twenty-five (25) days after receipt of Landlord’s notice or by rescinding its notice of its intention to discontinue its business in writing to Landlord delivered within twenty-five (25) days after receipt of Landlord’s notice.

7.TAXES.

A.Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments, water rents, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, including rent and/or occupancy taxes (hereinafter collectively referred to as “Taxes”), and each and every installment thereof that shall or may during the term of this Lease, become due and payable, or liens upon the Demised Premises or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requ irements, orders, directives, rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term “Taxes” as heretofore defined).

B.To the extent permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord’s name, if necessary, and shall execute any and all documents, instruments or certificates reasonably requested by Tenant to accomplish the foregoing.

C.Tenant shall be deemed to have complied with the covenants of this Lease if payment of Taxes shall have been made either within any period allowed by law or by the applicable governmental authority during which payment is permitted without penalty so long as the Taxes shall never become subject to a tax sale on the Demised Premises or subject Landlord to any civil or criminal liability. Tenant shall produce and exhibit to Landlord satisfactory evidence of payment prior to the expiration of any such period.

D.All Taxes shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which the Term shall be in effect. Notwithstanding anything to the contrary contained herein, if the Term hereof terminates prior to the date which would have been the expiration thereof but for the earlier termination, then Tenant shall pay those Taxes which would have been paid by Tenant to and including the term expiration date and this obligation shall expressly survive such termination.

E. So long as the requirements of Paragraph C of this Section are complied with, Tenant or its designees shall have the right to contest or review all Taxes by legal proceedings, or in such other manner as it may deem suitable. Tenant or its designees shall inform Landlord of any such proceedings and conduct such proceedings promptly at its own cost

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and expense, and free of any expenses to Landlord, and if necessary, in the name of and with the cooperation of Landlord (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant). Landlord shall execute all documents, instruments or certificates reasonably necessary and correct to accomplish the foregoing. Notwithstanding anything to the contrary or otherwise set forth herein, any such contest shall be subject to compliance with all applicable provisions of any Fee Mortgage (provided that Landlord shall reasonably cooperate with Tenant, at no material out of pocket cost to Landlord, in connection with such compliance).

F.              Landlord covenants and agrees that any refunds or rebates on account of Taxes paid by Tenant pursuant to the provisions of this Lease shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts that may be necessary to secure the payment of any such refund or rebate, directly to Tenant and/or will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Tenant’s application (if legally required) for separate tax assessments for such portions of the Demised Premises as Tenant shall at any time, and from time to time, reasonably designate. Landlord hereby agrees, upon request of Tenant, to execute all documents, instruments or certificates as shall reasonably be required by Tenant (so long as the same impose no material obligations on Landlord or expose Landlord to any liability).

G.              Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns, whether arising out of Landlord’s ownership of the Demised Premises, this Lease or otherwise; provided, however, that if at any time hereafter there is levied any tax on Landlord in lieu of real estate taxes based solely upon the ownership of real property, by property owners, in general, within the tax jurisdiction within which the Demised Premises are located, then such tax shall be considered to be an item of Taxes but for purposes of computing the amount of such tax payable by Tenant, the Demised Premises shall be deemed to be the sole real prope rty owned by Landlord.

H. In the event that any fee mortgagee (“Fee Mortgagee”) requires the escrow of Real Estate Taxes or insurance premiums, Tenant shall pay to such Fee Mortgagee in escrow, on the first day of each and every month during the term of this Lease, one twelfth (1/12) of all estimated charges for the ensuing twelve (12) month period as reasonably estimated by the Fee Mortgagee based on current bills for same. Tenant shall deposit at least ten (10) days prior to the first date on which any interest or penalty will accrue such additional amounts as may be necessary so that there shall at all times be sufficient funds in escrow to pay such charges.

8. SIGNAGE. Tenant and any assignee or subtenant of Tenant shall have the right to install, maintain and replace in, on or in front of any Improvement or location on the Demised Premises or in any part thereof such signs and advertising matter as Tenant, and with Tenant’s consent, any such assignee or subtenant of Tenant may desire, provided that Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain

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any necessary permits for such purposes. As used in this Section, the word “sign” shall be construed to include any placard, pylon, logo, light or other advertising symbol or object, irrespective or whether same be temporary or permanent. All signs shall be Tenant’s personal property and shall be maintained and removed by Tenant upon termination of this Lease at Tenant’s sole expense.

9.              TRUE LEASE. It is the intent of Landlord and Tenant and the parties agree that this Lease is a true lease and that this Lease does not represent a financing agreement. Each party shall reflect the transaction represented hereby in all applicable books, records, and reports (including income tax filings) in a manner consistent with “true lease” treatment rather than “financing” treatment.

10.            REPAIRS. Tenant shall, at all times during the Term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept and maintained in repair and good condition the Building and improvements at any time erected on the Demised Premises. Without limitation, Tenant shall perform the Remedial Work described in Exhibit C. Landlord shall not be required to furnish services or facilities or to make any improvements, repairs, replacements or alterations in or to the Demised Premises whatsoever during the Term of this Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for the entire Demised Premises and shall manage, maintain, repair, replace, clean, secure, protect, defend and keep in comp liance with all governmental requirements, now existing or hereafter enacted, the Demised Premises and all improvements and appurtenances and all utilities, facilities, installations and equipment used in connection therewith, including all walls, all floor coverings, glass, windows, doors, partitions, exterior and interior lighting, signage, elevators, electrical, plumbing, heating, ventilating, fire protection and life safety, security and other building systems, water and sewage systems and other fixtures or equipment serving the Demised Premises, keeping the Demised Premises and all improvements and appurtenances in at least as good condition as on the Commencement Date. Without limitation, Tenant shall provide all cleaning, painting, janitorial services, rubbish disposal, periodic exterior waterproofing treatments to the Building, window caulking, maintenance of all gas, water, electric and other utility lines from public ways to the Demised Premises, and shall repair, maintain and replace all landscapi ng, roads, parking areas, and walkways appurtenant to the Demised Premises, and shall provide all snowplowing services thereto. Tenant shall provide a copy of all current vendor contracts, if any, relating to the foregoing to Landlord at least annually and from time to time otherwise upon Landlord’s request.

11.             INSURANCE.

A.             Tenant shall maintain at its own cost and expense insurance policies insuring against loss by fire, lightning, the perils of extended coverage and malicious mischief covering the Demised Premises and the other Improvements in the Demised Premises and other perils as more fully described in Exhibit G.

B.              So long as Tenant performs its obligations in Paragraph A of this Section, Landlord hereby waives all rights of recovery against Tenant and any other occupant(s) of the Demised Premises and any of their agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building, arising out of fire or other casualty whether or not caused by acts or negligence of the aforementioned persons. Tenant

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hereby waives all rights of recovery against Landlord, its agents and employees for damage or destruction to any and all of the Improvements, including without limitation, the Building and to Tenant’s trade fixtures, equipment and inventory arising out of fire or other casualty whether or not caused by the acts or negligence of Landlord, its agents or employees.

C.              Tenant shall maintain at its own cost and expense public liability and other insurance in accordance with the requirements of Exhibit G.

D.              Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the Demised Premises and other locations of Tenant, provided such blanket insurance complies with all of the other requirements of this Lease with respect to the type of insurance covered by blanket policies. If Tenant elects to insure the Demised Premises under any blanket insurance policy, Tenant shall furnish to Landlord a certificate of insurance showing the Demised Premises as a location insured under any such blanket insurance policy to the extent of the limits required in Exhibit G. Tenant shall furnish to Landlord and any Fee Mortgagee as to which Tenant has received a notice containing such mortgagee’s name and address a duplicate original copy or certificate of the policie s of insurance required to be carried by Tenant.

E.              Notwithstanding anything to the contrary contained herein, Tenant may carry any required insurance on trade fixtures and equipment described in Section 17 under a program of self-insurance or to carry insurance with deductibles in excess of part or all of the amounts of insurance required under Exhibit G hereunder.

F.              If Tenant fails to perform any covenant in this Section and such failure continues for more than three (3) days after written notice, then, without limiting any of Landlord’s other rights and notwithstanding any other provision of this Lease concerning notice and cure of defaults, Landlord may but need not obtain such insurance, and Tenant shall pay the cost thereof upon demand as Additional Rent.

12.            REQUIREMENTS OF LAW AND FIRE INSURANCE. Tenant shall comply with and shall from time to time conform the Demised Premises to every applicable requirement of law, duly constituted authority, Board of Fire Underwriters having jurisdiction or of the carriers of all insurance on the Demised Premises (all of the foregoing being hereinafter called “Legal Requirements”). Tenant shall have the right upon giving notice to Landlord to contest any obligations imposed upon Tenant pursuant to the provisions of this Section and to defer compliance during the pendency of such contest, if the failure of Tenant to so comply will not subject Landlord to civil or criminal penalty or liability. Landlord shall cooperate with Tenant in such contes t (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall execute any documents reasonably required in furtherance of such purpose. Tenant shall not apply for any change in zoning applicable to the Land or the Demised Premises without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

13.            ALTERATIONS. Tenant may at its own expense from time to time, during the term hereof, make such alterations, additions, improvements and changes, structural or otherwise (hereinafter called “Alterations”), in and to the Demised Premises which it may deem necessary

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or desirable, provided such Alterations shall not reduce the value of the Demised Premises. Tenant, in making any Alterations, shall use materials of equal or better quality than those used in the construction of the Demised Premises and comply with all Legal Requirements. Tenant shall obtain or cause to be obtained all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals that may be required in connection with the making of Alterations. Landlord shall cooperate with Tenant in the obtaining thereof (so long as Landlord’s cooperation does not involve (a) incurring obligations or liability or material expense to Landlord unreimbursed by Tenant or (b) breach of any covenants binding on Landlord or the Demised Premises, including, without limitation, any mortgage) and shall execute any documents required in furtherance of such purpose. Tenant may, but shall not be obligated to, remove any Alteration so long as such removal does not materially and adversely affect any heating, ventilating, mechanical, electrical, structural, roof or life safety elements of the Building and Tenant shall repair all damage that results from such removal and restore the Demised Premises to a functional condition (including the filling of all floor and wall holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Upon completion of any Alteration that is not Cosmetic Work, Tenant shall promptly deliver to Landlord plans showing such Alteration as built. “Cosmetic Work” shall mean painting, carpeting and wall coverings and the like and the addition or deletion of interior non structural partitions, provided such work does not materially and adversely affect any roof, structural, mechanical, electrical, utility, fire protection or life safety systems or other systems or equipment of the Build ing.

14.            ACCESS TO DEMISED PREMISES. Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times approved by Tenant to examine the Demised Premises, and during the six (6) month period preceding the Expiration Date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein.

15.            UTILITIES.

A.             Tenant shall arrange and pay for any and all utility services to the Demised Premises, including, without limitation, telecommunications, water, gas, electricity and fuel used by it in the Demised Premises. Tenant shall pay all sewer charges assessed by the municipal authority having jurisdiction. The failure or interruption of any utility services shall be at Tenant’s sole risk and Landlord shall not suffer any reduction in any rent on account thereof.

B.              Tenant shall have the sole right to apply for, claim and receive any rebate, reimbursement, credit, or payment from any utility company providing service to the Building resulting from Tenant’s installation of energy saving equipment in or on the Building.

16. SUBORDINATION, NON DISTURBANCE AND ATTORNMENT. This Lease shall become subject and subordinate to the lien of any Fee Mortgagee of the entire fee interest of the Demised Premises, and any renewals, modifications or extensions thereof, provided that a Subordination, Non Disturbance and Attornment Agreement (“SNDA”) substantially in the form annexed hereto as Exhibit D (or a reasonably equivalent form that is reasonably acceptable to Tenant and the applicable Fee Mortgagee) is executed, acknowledged

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and delivered by such Fee Mortgagee to Tenant. If the Fee Mortgagee requires that this Lease have priority over such mortgage, Tenant shall, upon request of the Fee Mortgagee, execute, acknowledge and deliver to the Fee Mortgagee an agreement acknowledging such priority.

17. TRADE FIXTURES.

A.             All trade fixtures and equipment whether owned by Tenant or leased by Tenant from a Lessor/Owner (hereinafter called the “Equipment Lessor”) installed in the Demised Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant or any such Equipment Lessor and may be removed by Tenant or any such Equipment Lessor at any time. In no event (including a default under this Lease) shall Landlord have any liens, rights or claims in Tenant’s or Equipment Lessor’s trade fixtures and equipment and Landlord agrees to execute and deliver to Tenant and Equipment Lessor, within ten (10) days after request therefor, any document reasonably required by Tenant or Equipment Lessor in order to evidence the foregoing, so long as the same is reasonably acceptable to Landlord a nd any Fee Mortgagee. Tenant shall promptly repair all damage to the Building caused by the removal of any such trade fixtures or equipment. Notwithstanding anything to the contrary in this Lease, the following shall not constitute trade fixtures or equipment for purposes of this Lease and neither Tenant nor any Equipment Lessor shall own or have any right to remove the same (and, without limiting the generality of the foregoing, the following shall not be subject to the provisions of this Paragraph A or Paragraph B of this Section 17): (i) the HVAC system, plumbing, alarm, electric, life safety and other building systems used to operate the Building or maintain the certificate of occupancy, and (ii) any “fixtures” as such term is defined in the applicable Uniform Commercial Code.

B.              In the event Tenant shall enter into any arrangement to finance all or any portion of its trade fixtures or equipment either before or after the installation thereof in the Demised Premises and whether such financing shall be in the form of a mortgage, financing agreement, equipment lease, equipment sale leaseback or otherwise and in the event the lessor or secured party thereunder shall provide written notice to Landlord that it requires a copy of any default sent by Landlord to Tenant under this Lease also to be sent to such person (hereinafter called the “Owner/Secured Party”), then Landlord upon receipt of such requirement shall simultaneously send a copy of any default notice to such Owner/Secured Party at the address furnished to Landlord; provided that Landlord’s failure to deliver any such copy to the Owner/Secured Party shall not affect Landlord’s exercise of any right or remedy under this Lease in any way whatsoever. The copy of any such default notice shall be sent to such Owner/Secured Party in the same manner as notices are required to be sent and in the same manner as such notice is being sent to Tenant hereunder. Landlord further agrees that any such Owner/Secured Party shall have the right, but not the obligation, to remedy or cure any default of Tenant under this Lease within the same period of time granted to Tenant to remedy or cure any such default under this Lease.

C. All trade fixtures and other personal property (which term shall include without limitation food and inventory) of any person that is located on the Demised Premises shall be at the sole risk of Tenant. Landlord shall not be liable for any loss or damage to person or property resulting from any accident, theft, vandalism or other occurrence on the Demised Premises, including damage resulting from water, wind, ice, steam, explosion, fire, smoke,

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chemicals, the rising of water or leaking or bursting of pipes or sprinklers, defect, failure or any other cause.

18. ASSIGNMENT.

A.             Subject to paragraph (B) of this Section, Tenant may sublet all or any part of the Demised Premises, or license the use of any portion thereof or assign this Lease, but Tenant and Guarantor shall nevertheless continue to remain liable hereunder. Any assignee of the Lease and any sublessee or licensee of all or substantially all of the Demised Premises shall become jointly and severally liable to Landlord, and any such transferee shall upon Landlord’s request execute and deliver an instrument in confirmation thereof. In the case of any assignment of this Lease or any sublease or licensee of all or substantially all of the Demised Premises, Tenant shall promptly deliver to Landlord a true and complete copy of the transfer instruments. No transfer of all or any portion of the Demised Premises or Landlord’s c onsent thereto shall be deemed a waiver of the provisions of this Section, or a release of Tenant or any Guarantor.

B.              So long as the Minimum Credit Test is not met (however the following provisions of this paragraph B shall not apply at any time when the Minimum Credit Test is met), Tenant shall not assign this Lease or sublet or license all or substantially all of the Demised Premises to any transferee unless (x) such transferee (1) operates at least five (5) other grocery stores and (2) has Tangible Net Worth” (as defined in Section 25 below) of at least One Hundred Million Dollars ($100,000,000) or (y) if such transferee does not meet the requirements of (1) and (2) then such transferee must be approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. If Tenant desires to so transfer this Lease to a person who does not meet the requirements of (1)& nbsp;and (2) in the preceding sentence, then Tenant shall give notice of such intended transfer to Landlord together with reasonable information on its grocery store business and its audited financial statements for the three most recent years showing the credit of the proposed transferee and the proposed terms of the transfer. Upon receiving such information Landlord shall have thirty (30) days to elect by written notice to Tenant to do one of the following (and any failure of Landlord to affirmatively elect one or the other shall be deemed to be an election by Landlord to consent to such transfer: (a) approve such transfer, (b) disapprove such transfer, or (c) terminate the Term of this Lease on any date which is no sooner than one-hundred twenty (120) days after such election notice and no later than one-hundred eighty (180) days after such election. If Landlord elects to terminate this Lease and thereafter within one-hundred twenty (120) days enters into a lease or other agreement wit h Tenant’s proposed transferee, any transfer payment that was to have been made to Tenant by such transferee as specifically disclosed in writing as such to Landlord in the proposed terms of the transfer furnished to Landlord as provided above shall be paid by Landlord to Tenant out of the first rent amounts received by Landlord from such transferee until the transfer payment is paid to Tenant in full. For purposes of the previous sentence, a “transfer payment” shall include proposed sublease income in excess of the rent under this Lease, and in such cases Landlord’s payment to Tenant shall be a liquidated amount equal to such excess rent at a discount rate of ten percent (10%).

C. If Tenant assigns this Lease, Landlord, when giving notice to said assignee with respect to any default, shall also give a copy of such notice upon Tenant originally named herein or its successor of whom Landlord shall have been given written notice (being herein

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called “Original Tenant”), and no notice of default shall be effective as against a Tenant until a copy thereof is given to the Original Tenant. The Original Tenant shall have the same period after the giving of such notice to cure such default as is given to Tenant under this Lease. If this Lease terminates or this Lease and the Term hereof cease and expire because of a default of such assignee, Landlord shall promptly give the Original Tenant notice thereof. The Original Tenant shall have the option, to be exercised by notifying Landlord in writing within thirty (30) days after receipt by the Original Tenant of Landlord’s notice, to cure any default and become Tenant under a new lease for the remainder of the term of this Lease (including any Renewal Periods if applicable) upon all of the same terms and conditions of this Lease as it may have been amended by agreement between Landlord an d Original Tenant, provided, however, that at the time of making any such election Original Tenant cures all defaults under the Lease. In the event Original Tenant assigns this Lease and it shall thereafter be rejected in a bankruptcy or similar proceeding brought by or against such assignee, a new lease identical to this Lease shall be entered into between Landlord and Original Tenant, provided that Original Tenant cures any monetary defaults and any other defaults that are capable of being cured. Any new lease created under this Section shall commence on the date of termination or rejection of this Lease, as applicable. Notwithstanding the foregoing, if Landlord, in its sole discretion delivers to the Original Tenant and Guarantor a release as to all liability under this Lease as theretofore amended, the Original Tenant shall not have the foregoing option.

D. In the case of a sublease of all or substantially all of the Demised Premises for the remainder of the Term and so long as the Minimum Credit Test or the requirements of Section 1 8B are met, Landlord shall, within thirty (30) days following Tenant’s request, deliver to Tenant a recognition and attornment agreement following the form attached hereto as Exhibit  D and otherwise subject to Landlord’s reasonable approval, executed and acknowledged by Landlord, for the benefit of such subtenant; provided that such subtenant executes and delivers an instrument reasonably satisfactory to Landlord confirming that such subtenant is jointly and severally liable under this Lease. Further, Landlord shall, within ten (10) days after Tenant’s request, shall request its Fee Mortgagee to deliver to Tenant an SNDA for the benefit of any such subtenant (and Landlord shal l reasonably cooperate with Tenant, at no out of pocket cost to Landlord, in connection with obtaining any requisite consent from any Fee Mortgagee).

19. TITLE AND AUTHORITY.

A.             Landlord warrants and represents that Landlord is the owner of the fee simple of the Demised Premises and that other than any mortgages held by Fee Mortgagees that have provided an SNDA to Tenant in accordance with this Lease or such other liens or encumbrances that do not interfere with Tenant’s use of the Demised Premises or liens or encumbrances arising on account of any act or omission by Tenant or persons acting under Tenant or on account of Tenant’s failure to perform its obligations under this Lease, or matters set forth in Exhibit B 1, Landlord shall not voluntarily impose any other lien or encumbrance on the Demised Premises.

B.              Landlord and Tenant each warrant and represent to the other that (a) each is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) each has the authority to own its property and to carry on its business as contemplated under this Lease; (c) each has duly executed and delivered this

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Lease; (d) the execution, delivery and performance by each of this Lease (i) are within its powers, (ii) have been duly authorized by all requisite action, (iii) will not violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which it is a party or by which it or any of its property is bound, (iv) will not render it insolvent or (v) will not result in the imposition of any lien or charge on any of its property, except by the provisions of this Lease; and (e) the Lease is a valid and binding obligation of each in accordance with its terms.

C. Landlord and Tenant have executed the Memorandum of Lease (hereinafter called the “Memorandum”) attached hereto as Exhibit E simultaneously with the execution of this Lease. Upon the expiration of the Term each agree to execute and deliver a recordable termination of the Memorandum, which covenant shall survive termination. Tenant irrevocably appoints Landlord its attorney in fact so to execute such termination of the Memorandum if Tenant fails to do so within ten (10) days of written request, which power is coupled with an interest and shall automatically be transferred to any successor or assign of Landlord’s interest in the Demised Premises.

20.            QUIET ENJOYMENT. Landlord covenants and agrees that provided no default remains uncured beyond any applicable notice and cure period, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights, easements, appurtenances and privileges belonging or in anyway appertaining thereto during the full term of this Lease and any extension thereof subject always to the terms of this Lease, provisions of law, and matters of record to which this Lease is or may become subordinate. This covenant is in lieu of any other so called quiet enjoyment covenant, whether express or implied.

21.            UNAVOIDABLE DELAYS. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by any strike, lockout, labor dispute, inability to obtain labor or material, Act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any other event similar to the foregoing and beyond the control of such party, then the time to perform such obligation or to satisfy such condition shall be postponed by the period of time consumed by the delay. Time is of the essence for the performance of all monetary obligations under this Lease and the foregoing shall never apply to the performance o f monetary obligations.

22. END OF TERM. Upon expiration or other termination of the term of this Lease, Tenant shall peaceably and quietly quit and surrender the Demised Premises and all Alterations in the good order and condition Tenant is required to maintain the same and remove all trade fixtures, equipment and other personal property whether or not bolted or otherwise attached and all of Tenant’s signs wherever located; and in all cases shall repair damage that results from such removal. Any fixtures and equipment that Tenant or Owner/Secured Party does not remove following the expiration or other termination of the Term of this Lease shall be deemed to be abandoned by Tenant, shall at once become the property of Landlord, and may be disposed of in such manner as Landlord shall see fit; and Tenant shall pay the cost of removal and disposal to Landlord within thirty (3 0) days after demand; provided, however, that if this Lease shall be terminated as the result of a default by Tenant, then trade fixtures and equipment shall not be deemed abandoned until sixty (60) days after notice of such termination is given to

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Owner/Secured Party. Tenant or Owner/Secured Party shall have the right at any time prior to the date such fixtures and equipment shall be deemed abandoned to remove the same from the Demised Premises. Should Tenant or anyone claiming by, through or under Tenant hold over in possession after the Expiration Date or earlier termination of this Lease, such holding over shall not be deemed to extend the Term or to renew this Lease, but without limiting Landlord’s other rights and remedies on account of such breach the tenancy thereafter shall continue as a tenancy at sufferance from month-to-month upon the terms and conditions herein contained, provided, however that rent shall be charged and paid at one hundred fifty percent (150%) of the Fixed Annual Rent and Additional Rent in effect during the twelve (12) month period immediately preceding the Expiration Date or earlier termination.

23.         LANDLORD’S DEFAULT.

A.             Landlord shall be in default hereunder if its fails to comply with any of its express obligations set forth in this Lease within thirty (30) days following written notice and opportunity to cure; provided, however, Landlord will not be in default if said default could not reasonably be cured within such period of thirty (30) days, and Landlord promptly commences and thereafter proceeds with due diligence and in good faith to cure such default.

B.              In the event that a Fee Mortgagee shall have given written notice to Tenant that it is the holder of a mortgage covering the Demised Premises, and provided such notice includes the address to which notices to the Fee Mortgagee are to be sent, Tenant agrees that in the event it shall give written notice to Landlord to cure a default of Landlord as provided for in this Section, Tenant shall give a copy of said notice to the Fee Mortgagee. Tenant agrees that the Fee Mortgagee may cure or remedy such default within the time permitted to Landlord pursuant to this Section; provided that in addition the Fee Mortgagee shall be entitled to such further time as may be reasonably necessary for the Fee Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Fee Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.

24. ADDITIONAL CHARGES. If Tenant shall be in default hereunder, Landlord, after thirty (30) days notice that Landlord intends to cure such default (but only ten (10) days notice if such default concerns any breach of Tenant’s insurance obligations under Section 11), shall have the right, but not the obligation, to cure such default and Tenant shall pay to Landlord, upon demand, as Additional Rent, the reasonable cost thereof. Other than such insurance defaults, Landlord shall not commence to cure any default of such a nature that it could not reasonably be cured within such period of thirty (30) days, if Tenant commences to cure same within said period, and thereafter proceeds with reasonable diligence and in good faith to cure such default.

25.         TENANT’S DEFAULT.

A. If Tenant fails to pay Fixed Annual Rent or Additional Rent when due and such default continues for ten (10) days after written notice; or if a default occurs on account of any asset sale, merger or consolidation on the part of Guarantor in violation of paragraph D of

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this Section; or if a petition is filed by Tenant (or Guarantor) for insolvency or for appointment of a receiver, trustee or assignee or for adjudication, reorganization or arrangement under any bankruptcy act or other applicable law or if any similar petition is filed against Tenant (or Guarantor) and such petition is not dismissed within sixty (60) days thereafter; or if Tenant fails to perform any other covenant or condition under this Lease, Landlord may give Tenant a written notice specifying the nature of the default of such other covenant or condition and if Tenant does not, within thirty (30) days after receipt of such written notice (but only three (3) days in the case of failure to perform Tenant’s insurance obligations under Section 11), cure such other default or, if such default is of such a nature that it could not reasonably be cured within such period of thirty (30) days, and Tena nt does not commence and proceed with reasonable diligence and in good faith to cure such default then, after the expiration of such thirty (30) day period (or longer period if such default cannot reasonably be cured within said thirty (30) day period), Landlord shall have the right, in addition to the rights set forth in the preceding sentence, to seek damages or an injunction as to such failure to perform, or after the expiration of such thirty (30) day period Landlord may, but only during the continuance of such default, send a notice to Tenant terminating this Lease and reenter the Demised Premises and dispossess Tenant and any other occupants thereof, remove their effects not previously removed by them, and hold the Demised Premises as if this Lease had not been made; and Tenant waives the service of any additional notice of intention to reenter or to institute legal proceedings to that end. If any payment of Fixed Annual Rent, Additional Rent, or other sum owing Landlord is not paid within five (5)&nbs p;days after the same is due, then in addition to all other remedies hereunder Tenant shall pay an administrative late charge to Landlord equal to five percent (5%) of the overdue amount in question, which late charge will be due upon demand as Additional Rent.

B. After a termination, dispossess or removal in accordance with this Section, (1) the Fixed Annual Rent and Additional Rent shall be paid up to the date of such dispossess or removal, (2) Landlord may re-let the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms which may, at the option of Landlord, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and (3) Tenant shall pay to Landlord, as liquidated damages, any deficiency between the Fixed Annual Rent and Additional Rent due hereunder and the amount, if any, of the rents actually collected by Landlord on account of the new lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease (not including any Renewal Periods, the c ommencement of which shall not have occurred prior to such dispossess or removal). In computing such liquidated damages there shall be added to said deficiency the expenses which Landlord incurs in connection with re-letting the Demised Premises, including reasonable attorneys’ and brokerage fees, tenant inducements such as free rent, moving expense reimbursements, tenant improvement allowances, brokerage commissions, fees for legal services, and other expenses of preparing the Demised Premises for reletting (“Reletting Expenses”). Such Reletting Expenses shall be paid to Landlord within ten (10) days of demand and all other liquidated damages shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed Annual Rent and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord shall not be liable for failure to re-let the Demised Premises or, in the event that the Demised Premises are re-let, for failure to collect the rent under such re-letting, unless Landlord shall not have used its commercially reasonable efforts to re-let the Demised Premises for the reasonable

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rental value thereof and to collect the rent under such re-letting. Landlord shall use its commercially reasonable efforts to mitigate damages.

C.Landlord hereby expressly waives any and all rights granted by or under any present or future laws to reenter the Demised Premises, to dispossess Tenant or any other occupant thereof or to remove their effects not previously removed by them, or to terminate this Lease for any reason or in any manner other than as set forth in this Section 25. Tenant hereby expressly waives any and all rights granted by or under any present or future laws to remain in possession, cure any defaults or redeem its leasehold for any reason or in any manner other than as set forth in this Section 25. The provisions of this Section 25 shall survive the early termination of the Term.

D.Any sum due from Tenant under this Lease is not paid within five (5) days after the same is due, such amount shall bear interest from the date due at the rate of one and one-half (11/2%) percent for each month (or ratable portion thereof) the same remains unpaid. Nothing in this Lease shall limit the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an amount equal to the maximum allowed by any statute or rule of law in effect at the time; and Tenant agrees that the fair value for occupancy of all or any part of the Demised Premises at all times shall never be less than the Fixed Annual Rent and all Additional Rent payable from time to time.

E. The Guaranty given by Guarantor of this Lease is a material inducement to Landlord’s entering into this Lease. If at any time the Guarantor of this Lease shall sell all or a material portion of its assets or shall merge or consolidate with another entity and, in either case, if (1) Guarantor (including the resulting entity of any merger or consolidation) has a tangible net worth immediately after the transaction that is less than Guarantor’s tangible net worth immediately prior to the transaction, and (2) Guarantor’s tangible net worth immediately after the transaction is less than the Minimum Credit Test, then the transaction shall be a default under this Lease for which there is no cure period entitling Landlord to exercise all of the rights and remedies under this Section. If at any time the existing Guarantor desires to assign the Guaranty to another person and for such person to assume all of the obligations and liabilities under the Guaranty, and if the proposed successor Guarantor’s tangible net worth is greater than the Minimum Credit Test, Tenant may present evidence of such proposed successor Guarantor’s tangible net worth to Landlord in the form of financial statements for (A) the most recent fiscal year of the proposed successor Guarantor audited by a nationally recognized firm of certified public accountants and (B) the most recent fiscal quarters since such fiscal year certified to by Guarantor’s chief financial officer, together with a form of Guaranty identical in form to the form of Guaranty attached to this Lease as Exhibit F to be executed and delivered by the proposed successor Guarantor. Upon Landlord’s written approval of such financial statements as demonstrating a tangible net worth of the proposed successor Guarantor greater than the Minimum Credit Test (which approval will not be unreasonably withheld, conditioned or delayed) and upon the execution and delivery to Landlord of such form of Guaranty by the proposed successor Guarantor, the existing Tenant (if, but only if the Lease is being assigned to a successor Tenant) and Guarantor shall be released from all liability under the Lease and Guaranty and the successor Tenant and Guarantor shall become fully liable to Landlord under the Lease and Guaranty. Thereafter and as an obligation of the then successor Tenant under this Lease, such successor Guarantor shall annually and quarterly continue to provide such financial

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statements to Landlord demonstrating that it continues to meet the Minimum Credit Test for those provisions of this Lease requiring such as a condition of being relieved from certain Lease obligations otherwise applicable. As used in this Lease “Guarantor” means the Guarantor then fully liable under its Guaranty to Landlord. “Tangible net worth” means the net worth as shown on such financial statements prepared in accordance with generally accepted accounting principles consistently applied and disregarding any value attributable to good will or other intangible assets and amounts owed by shareholders, officers or Affiliates except to the extent such amounts owed by Affiliates would ordinarily and customarily be consolidated on Tenant’s financial statements. “Minimum Credit Test” means a tangible net worth as shown on such fiscal year and fiscal quarter financial statements of at least Five Hundred Million Dollars ($500,000,000).

26. DESTRUCTION.

A.In the event of any damage or destruction by fire, the elements, or casualty (hereinafter called “Destruction”) to all or any part of the Building or any other Improvements in the Demised Premises, Tenant shall commence promptly, and with due diligence continue to restore same to substantially the same condition as existed immediately preceding the Destruction, except as otherwise provided in paragraph B of this Section. If the Destruction is partial, Tenant shall complete the restoration within two hundred seventy (270) days after the Destructions, subject to Unavoidable Delays. If the Destruction is total, Tenant shall complete the restoration within eighteen (18) months following the Destruction, subject to Unavoidable Delays. In no event shall Fixed Annual Rent or any Additional Rent abate on account of any Destruction.

B.If, as a result of any Destruction, fifty percent (50%) or more of the total floor area of the Building is damaged, destroyed or, in Tenant’s reasonable opinion rendered untenantable, during the last two (2) years of the Initial Term or during any Renewal Term (but this shall not apply at any other time), Tenant may elect to terminate this Lease by giving notice to Landlord of such election on or before the date that is ninety (90) days after the Destruction, stating the date of termination, which shall be not more than thirty (30) days after the date on which such notice of termination shall have been given, and (1) upon the date specified in such notice this Lease and the term hereof shall cease and expi re and (2) any Fixed Annual Rent and Additional Rent shall be paid until such date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant. In the event that Tenant elects to terminate this Lease as a result of the Destruction referenced above, Tenant shall cause all insurance proceeds to be paid to Landlord including business interruption insurance proceeds.

C. Except in the case of paragraph B of this Section, Insurance proceeds shall be deposited with a bank or trust company acceptable to Landlord and Tenant and under the control of Landlord and Tenant, as trustees, or, if the Fee Mortgagee shall be a bank, trust company, insurance company or other entity engaged in mortgage lending then such proceeds shall be deposited with such Fee Mortgagee and shall be held and disbursed by it, as trustee, for restoration in accordance with customary construction lending practice and procedures. Any excess insurance proceeds shall be paid to Tenant at the conclusion of the restoration so long as Tenant is not then in default beyond any applicable cure period.

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27. EMINENT DOMAIN.

A.In the event of an actual taking for any public or quasi-public use by any lawful power or authority by exercise of the right of condemnation or of eminent domain or by agreement between Landlord and those having the authority to exercise such right (hereinafter called “Taking”) of the entire Building, then (1) this Lease and the Term shall cease and expire as of the date of vesting of title or transfer of possession, whichever occurs earlier, as a result of the Taking, and (2) any Fixed Annual Rent and Additional Rent shall be paid until such termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

B.(1) In the event of a Taking of twenty (20%) or more of the Demised Premises, or in the event of a Taking resulting in a reduction of twenty (20%) percent or more of the parking spaces (unless Landlord provides adequate and sufficient additional contiguous parking areas in substitution therefor reasonably acceptable to Tenant), or in the event of a Taking resulting in a divided Building or parking area such that passage between the divided portions of the parking area is not possible, or in the event of permanent denial of reasonably adequate access to the Demised Premises or Building on account of a Taking which in Tenant’s reasonable judgment makes it economically unfeasible to operate Tenant’s business at the Demised Premises, then Tenant may elect to terminate this Lease by giving notice of termination to Landlord on or before the date which is ninety (90) days after receipt by Tenant of notice that the Taking in question. Said notice of termination shall state the date of termination, which date of termination shall be not more than thirty (30) days after the date on which such notice of termination is given to Landlord, and (a) upon the date specified in such notice of termination this Lease and the term hereof shall cease and expire, and (b) any Fixed Annual Rent and Additional Rent shall be paid until the date of termination and any such amounts paid for a period after such date of termination shall be promptly refunded to Tenant.

(2) If Tenant does not elect to terminate this Lease as aforesaid, then the award or payment for the Taking shall be used by Tenant for restoration as hereinafter set forth and Tenant shall promptly commence and with due diligence continue to restore the portion of the Demised Premises remaining after the Taking to substantially the same condition and tenantability as existed immediately preceding the Taking. Tenant shall complete the restoration within two hundred seventy (270) days after the Destruction, subject to Unavoidable Delays. Taking proceeds shall be paid, held and disbursed in the same manner as insurance proceeds under Section 26C and there shall be no abatement or reduction in Fixed Annual Rent or any Additional Rent. Any taking proceeds remaining after the restoration is complete shall be divided equally between Landlord and Tenant.

C. If this Lease is terminated under any provision of this Section 27, so long as Tenant is not then in breach of this Lease beyond any applicable cure period, any specific damages that are expressly awarded to Tenant on account of its relocation expenses and specifically so designated shall belong to Tenant. Except as provided in the preceding sentence of this paragraph, Landlord reserves to itself, and Tenant releases and assigns to Landlord, all rights to damages accruing on account of any Taking or by reason of any act of any public authority for which damages are payable. Tenant agrees to execute such further instruments of assignment as may be reasonably requested by Landlord, and to turn over to Landlord any

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damages that may be recovered in any proceeding or otherwise; and Tenant irrevocably appoints Landlord as its attorney-in-fact with full power of substitution so to execute and deliver in Tenant’s name, place and stead all such further instruments if Tenant shall fail to do so after 10 days notice.

28.THIRD PARTY LITIGATION. If Landlord, Landlord’s adviser or its mortgagees are made parties to any litigation commenced by or against Tenant by or against any person claiming through Tenant with respect to the Demised Premises, Tenant agrees to indemnify Landlord in the manner provided in Section 38 and in addition pay, as Additional Rent, all costs of Landlord in connection with such litigation including reasonable counsel fees and litigation costs, except in the sole instance where Landlord or Tenant have legal claims in the litigation against one another or where Landlord has been adjudicated in any litigation to have acted with gross negligence or willful misconduct. Without limitation, the foregoing includes foreclosure or enforcement of any lien, attachment or mortgage on the Demised Premises resulting from the act or omission of Tenant, but shall not include any Fee Mortgage or other lien created by Landlord.

29.WAIVER OF DISTRAINT. Landlord hereby expressly waives any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance or both, upon all goods, merchandise, equipment, trade fixtures, furniture and personal property of Tenant or any nominee of Tenant in the Demised Premises, delivered or to be delivered thereto.

30. ESTOPPEL CERTIFICATES. Upon the request of either party, at any time and from time to time, Landlord and Tenant agree to execute and deliver to the other, within thirty (30) days after such request, a written instrument that may be relied upon by the requesting party, its potential purchasers, lenders, investors, subtenants and/or assignees (and any of their respective successors and assigns), duly executed, (a) certifying if such is the case that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications, (b) specifying the dates to which the Fixed Annual Rent and Additional Rent have been paid, (c) stating whether or not, to the knowledge of the party executing such instrument, the other party hereto is in default and, if such party is in default, stating the nature of such default, (d) stating the Commencement Date and Expiration Date, (e) stating which options to renew the term have been exercised, if any; and (f) any other information that may reasonably requested by the requesting party and customarily addressed in an estoppel certificate.

31. NOTICES. Any notices, consents, approvals, submissions or demands (“Notices”) given under this Lease or pursuant to any law or governmental regulation, including, without limitation, those by Landlord to Tenant or by Tenant to Landlord shall be in writing. Unless otherwise required by law, governmental regulation or this Lease, any such Notice shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service (a) to Landlord, at the address of Landlord as hereinabove set forth and with like copy given to Daniel A. Taylor, Esq. or Primo Fontana, Esq., DLA Piper, 33 Arch Street 26th Floor, Boston MA 02110 and/or such other persons and addresses as Landlord may designate by notice to Tenant; or (b) to Tenant, then one copy shall be delivered to the attention of the General Counsel, another shall be delivered to the attention of

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the Senior Vice President of Real Estate, and another shall be delivered to the attention of the Senior Director of Properties and Administration, all at 2 Paragon Drive, Montvale, New Jersey 07645 or to such other addresses as Tenant may designate by notice to Landlord. Any such Notice shall be deemed given three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, and one business (1) day when sent by overnight delivery. A party’s attorney may give Notices on behalf of such party.

32.BROKER. Each party represents and warrants to each other there is no broker, agent, finder or other person with whom it has dealt in connection with the negotiation, execution and delivery of this Lease other than those persons named in that certain Agreement of Sale and Leaseback dated as of November 2, 2010 entered into between Tenant and Landlord (or Affiliates of each) regarding a transaction that led to this Lease.

33.LIENS. Tenant shall keep the Demised Premises (and Landlord’s interest therein) and Tenant’s leasehold (and Tenant’s interest therein) free of, and shall within thirty (30) days discharge, any attachment, lien, security interest or other encumbrance that arises as a result of any act or omission of Tenant or persons acting by, through or under Tenant. Without limitation, Tenant will not permit or suffer any mechanic’s or materialmen’s or other liens to stand against the Demised Premises for any labor or material furnished in connection with work of any character performed, any services pro vided or any other act, omission or obligation on the part or at the direction of Tenant or persons claiming by, through or under Tenant, and Landlord will not permit any such liens for work or material furnished the Landlord to stand against said premises (the foregoing shall not imply that Landlord has any responsibility to furnish any work or material). However, Landlord and Tenant shall respectively have the right to contest the validity or amount of any such lien, provided that the payment of such amount is bonded during the pendency of such contest, but upon the final determination of such contest the party responsible for such lien shall immediately pay any judgment rendered with all proper costs and charges (including reasonable attorneys’ fees) and shall have the lien released at its own expense. In lieu of bonding either party may obtain other security acceptable to the other party in such party’s sole discretion. Any contest hereunder shall be subject to all requirements set forth in any Fee Mortgage.

34.DEFINITION OF LANDLORD. The term “Landlord” as used herein, means Landlord named herein and any subsequent owner of Landlord’s estate hereunder. Any owner of Landlord’s estate hereunder shall be relieved of all liability under this Lease after the date that it ceases to be the owner of Landlord’s estate (except for any liability arising prior to such date) and the party succeeding to Landlord’s estate shall assume all liability of Landlord arising from and after it becomes owner of Landlord’s estate. The foregoing shall be self-operative but Landlord and Tena nt shall upon the request of either execute and deliver an instrument acknowledging the foregoing.

35.ADJOINING OR ADJACENT PROPERTY. Landlord and Tenant shall each promptly forward to the other any notice or other written communication received by it from any owner of property adjoining or adjacent to the Demised Premises or from any municipal or other governmental authority in connection with any hearing or other administrative proceeding relating to the use of the Demised Premises or any adjoining or adjacent property. Tenant may, at its sole cost and expense, in its own name and/or in the name of Landlord, appear in any such

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proceeding. Landlord shall fully cooperate with Tenant (so long as Landlord’s cooperation does not involve incurring obligations or liability or material expense to Landlord unreimbursed by Tenant) and shall, without limitation, make such appearances and furnish such information as may be reasonably required by Tenant. Landlord agrees to execute any instruments reasonably requested by Tenant in connection with any such proceeding.

36. ENVIRONMENTAL LAWS.

A. “Environmental Laws” shall mean all federal, state or local laws, ordinances, rules, regulations, or policies, whether now or hereafter enacted, governing the use, clean-up, remediation storage, treatment, transportation, manufacture, refinement, handling, release, production or disposal of Hazardous Materials including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. Sections 9601, et. seq.) as amended by the Superfund Amendments and Reauthorization Act; (2) the Hazardous and Solid Waste Act amendments of 1984 Pub L 98-616 (42 U.S.C. Section 699); (3) the Hazardous Materials Transportation Act, (49 U.S.C. Section 1801, et. seq.); (4) the Resource Conservation and Recovery Act of 1976, (42 U.S.C. Sections 6901, et. seq.); or (5) the Toxic Substances Control Act, and any amendments thereto and any regulations adopted and publications promulgated pursuant thereto, or any other federal, state or local environmental laws, ordinances, rules, or regulations whether now or hereafter enacted. “Hazardous Materials” shall mean any hazardous wastes or hazardous substances as defined in any Environmental Law including, without limitation, any asbestos, PCB, toxic, noxious or radioactive substances, methane, volatile hydrocarbons, petroleum, petroleum by-products, industrial solvents or any other material or substance which could cause or constitute a health, safety or other environmental hazard to any person or property.

B. Tenant, at its sole cost and expense, shall until the Expiration Date of this Lease comply with all Environmental Laws and shall be responsible for all Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date, it being acknowledged that Tenant or its Affiliate owned the Land and Demised Premises prior to the Commencement Date. Tenant shall provide Landlord with copies of any notices pertaining to any governmental proceedings or actions under any Environmental Law (including requests or demands for entry onto the Demised Premises and/or Land for purposes of inspection regarding the handling, disposal, clean-up or remediation of Hazardous Materials or claims, penalties, fines or assessments) within fifteen (15) days after receipt thereof. Landlord shall cooperate with Tenant (so long as Landlord’s cooperation does not involve inc urring obligations or liability or material expense to Landlord unreimbursed by Tenant) and provide such documents, affidavits and information as may be reasonably necessary for Tenant to comply with all Environmental Laws.

C. If required by governmental authority or if Landlord has a reasonable basis to believe a release of Hazardous Materials may have occurred or a threat of release exists on or from the Land or Demised Premises or Hazardous Materials activities have taken place on the Land or Demised Premises that do not conform to Environmental Laws, then Landlord may, but need not, perform appropriate testing in a commercially reasonable manner and the reasonable costs thereof shall be reimbursed to Landlord by Tenant upon demand as Additional Rent. Tenant shall execute affidavits, representations and the like from time to time at

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Landlord’s request concerning Tenant’s actual knowledge and belief regarding the presence or absence of Hazardous Materials at the Land and Demised Premises. In all events, and without limitation, Tenant shall indemnify all Indemnitees, expressly including without limitation all Fee Mortgagees, in the manner elsewhere provided in this Lease with respect to Hazardous Materials on or migrating from the Land and Demised Premises prior to, on and after the Commencement Date (and for these purposes, the loss indemnified shall include without limitation any costs of investigation or remediation, and any claim of personal injury or property damage to any person); provided, however, that such indemnity shall not include and Tenant shall not be responsible for Hazardous Materials migrating on to the Land from the land of third parties. The covenants of this Section shall survive the Term. Tenant shall fro m time to time upon Landlord’s request confirm all of the foregoing covenants directly to mortgagees.

37. LEASEHOLD MORTGAGE.

A.Tenant, and its successors and assigns (including, without limitation, any subtenant of Tenant), may, from time to time and without Landlord’s prior written consent, mortgage all or any portion of its right, title and interest in and to this Lease under one leasehold mortgage at any one time, or two leasehold mortgages given as part of a single financing transaction, to an Institutional Lender (each, a “Leasehold Mortgage”), and assign any or all rights under this Lease and any subleases as collateral security for such Leasehold Mortgage; provided that all rights acquired under such Leasehold Mortgage shall be subject to all of the terms, covenants and conditions of this Lease, and to all rights and inter ests of Landlord, none of which terms, covenants or conditions is or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Lease. In no event shall Tenant have any right to mortgage or encumber Landlord’s fee interest in the Demised Premises. The term “Leasehold Mortgage” shall include whatever security instruments that may be used in the locale of the Demised Premises, such as, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements, assignment of leases and rents, security agreements and other documentation required pursuant to the Uniform Commercial Code. The term “Leasehold Mortgage” shall also include any instruments required in connection with a sale-leaseback transaction. An “Institutional Lender” is a bank, trust company, savings and loan association, pension fund, endowment fund, insurance company, other institutional pool of recognized status or a governmental authority empow ered to make loans or issue bonds or any other recognized institution regularly engaged in the making of mortgage loans that has not less than $100,000,000 in assets. The holder of any Leasehold Mortgage shall be called a “Leasehold Mortgagee.”

B.If Tenant and/or Tenant’s successors and assigns (including, but not limited to, any sublessee of Tenant) shall grant a Leasehold Mortgage, and if Tenant shall send to Landlord a true copy thereof, together with a notice specifying the name and address of the Leasehold Mortgagee (“Mortgage Notice”), Landlord agrees that as long as any such Leasehold Mortgage shall remain unsatisfied of record or until a notice of satisfaction is given by the Leasehold Mortgagee to Landlord, the following provisions shall apply:

(1) There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent of the Leasehold Mortgagee;

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(2)Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided that in the case of defaults that cannot be cured by the payment of money in addition the Leasehold Mortgagee shall be entitled to such further time to remedy or cause to be remedied the defaults complained of as may be reasonably necessary for the Leasehold Mortgagee to remove any stay in bankruptcy and/or to commence and comp lete foreclosure proceedings or remove any cause beyond the Leasehold Mortgagee’s reasonable control impairing its ability to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion.. Nothing herein shall be construed as requiring a Leasehold Mortgagee to cure any default. Landlord’s failure to deliver any such copy to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever;

(3)If any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of twenty (20) days from the date of the giving of notice of termination upon such Leasehold Mortgagee, such Leasehold Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all Fixed Annual Rent and Additional Rent herein provided for which are then in default, and shall have complied (or caused compliance) with all of the other requirements of this Lease, if any are then in default, then, in such event, Landlord shall not be entitled to terminate this Lease and any notice of termination previously given shall be void and of no effect;

(4)Notwithstanding anything in this Lease to the contrary, any sale of Tenant’s leasehold interest in any proceeding for the foreclosure of the Leasehold Mortgage, or the assignment or transfer of Tenant’s leasehold interest in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment;

(5)If not required to be held by the Fee Mortgagee, the proceeds from any insurance policies or arising from a Taking may be held by any institutional Leasehold Mortgagee and distributed pursuant to the provisions of this Lease;

(6)The Leasehold Mortgagee may be added to the “Loss Payable Endorsement” of any and all insurance policies required to be carried by Tenant hereunder on the condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the Leasehold Mortgage shall so agree; except that the Leasehold Mortgage may provide a manner for disposition of such proceeds as remain after full compliance with the restoration covenants of this Lease, if any, otherwise payable to Tenant (but not such proceeds, if any, payable to Landlord, any Fee Mortgagee or jointly to Landlord or Tenant) pursuant to the terms of this Lease; and

(7)Landlord shall provide Leasehold Mortgage with prompt notice of any legal proceeding or arbitration between Landlord and Tenant. Unless the Leasehold Mortgage provided otherwise, Leasehold Mortgagee shall have the right to intervene in any such

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proceeding and be made a party to such proceeding, and the parties hereby consent to such intervention. Landlord’s failure to deliver any such notice to a Leasehold Mortgagee shall not affect the Landlord’s exercise of any right or remedy under the Lease in any way whatsoever.

Tenant, in any Mortgage Notice served upon Landlord under this Section, may exclude any or more of the above provisions, and if so excluded, such provisions shall not be effective.

C. Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such Leasehold Mortgagee and Landlord, between Landlord, Tenant and Leasehold Mortgagee, separately agreeing to all of the provisions of this Section.

38.INDEMNITY. Except as otherwise expressly set forth in this Lease, Tenant shall assume exclusive control of the Demised Premises and all areas pertaining thereto including all appurtenances, improvements, utilities, water bodies, grounds, sidewalks, walkways, driveways and parking facilities, and Tenant shall bear the sole risk of all related tort liabilities. To the greatest extent permitted by applicable law, Tenant shall indemnify, save harmless and defend Landlord, Landlord’s adviser and mortgagees and their respective officers, directors, managers, members, partners, agents and employ ees, (“Indemnitees”) from all liability, claim, damage, cost or loss (including reasonable fees and litigation costs) arising in whole or in part out of, or in any manner connected with (i) any injury, loss, theft or damage to any person or property while on or about the Demised Premises, or (ii) any condition of the Demised Premises, or the possession and use thereof (including any failure to vacate at the end of the Term) or any activity permitted or suffered on the Demised Premises (including Hazardous Materials), or (iii) any breach of any covenant, representation or certification by Tenant or persons acting under Tenant, or (iv) any negligent act or omission anywhere by Tenant or persons acting under Tenant, in each case paying the same to Landlord on demand as Additional Rent, except to the extent such liability results from the negligence or willful misconduct of Landlord or the other Indemnitees. Without implying that other covenants do not survive, the cov enants of this Section shall survive the Term. Tenant shall immediately respond and assume the investigation, defense and expense of all of the foregoing matters. Landlord or any Indemnitee, at its sole cost and expense, may join in such defense with counsel of its choice.

39.LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything contained to the contrary in this Lease, whether express or implied, it is agreed that Tenant will look only to Landlord’s fee interest in and to the Demised Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of a breach or default under this Lease by Landlord with respect to any claim whatsoever related to the Demised Premises, and no other property or assets of Landlord or of Landlord’s adviser or of any Fee Mortgagee or its or their manager s, members, directors, officers, trustees, beneficiaries, shareholders, partners, joint venturers (disclosed or undisclosed) shall be subject to suit or to levy, execution or other enforcement procedures for the satisfaction of any such judgment (or other judicial process). No officer, director, manager, member, shareholder, trustee, beneficiary, partner, agent, attorney or employee of Landlord or of Landlord’s adviser or of any Fee Mortgagee shall ever be personally or individually liable; nor shall Landlord, Landlord’s adviser or any Fee Mortgagee or such persons ever be answerable or liable in any equitable judicial

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proceeding or order beyond the extent of their interest in the Demised Premises. In no event shall Landlord, Landlord’s adviser or any Fee Mortgagee or any such persons ever be liable to Tenant for indirect or consequential damages.

40.BOOKS AND RECORDS. Tenant shall at all times keep and maintain full and correct records and books of account of the operations of the Demised Premises in accordance with generally accepted accounting principals consistently applied and shall accurately record and preserve the records of such operations in accordance with its customary records retention policy. Notwithstanding that there has been no Percentage Rent Event, Tenant shall report the gross sales from the Demised Premises to Landlord annually for each fiscal year of Tenant no later than thirty (30) days following the end of such fisc al year, such report to be certified by Tenant’s chief financial officer. Landlord shall keep such information confidential at all times in accordance with the terms of Exhibit J and may only release such information to Landlord’s constituent members, and so long as such persons execute and deliver to Tenant a Confidentiality Agreement with Tenant in the form attached hereto as Exhibit J (“Confidentiality Agreement”) whether or not Tenant signs such Confidentiality Agreement, also to its lenders and prospective lenders and to prospective purchasers of Landlord’s interest in the Demised Premises. Upon an Event of Default, Tenant shall permit Landlord, Landlord’s accountants and Fee Mortgagees reasonable access thereto, with the right to make copies and excerpts therefrom upon reasonable advance notice to Tenant.

41.SATELLITE DISH. If permitted by applicable law, Tenant shall have the right to place on the roof or wall of the Demised Premises at Tenant’s sole cost and expense, a satellite dish (hereinafter called the “Dish”) for transmission of data (both receiving and sending) between Tenant’s various operations and its headquarters in accordance with all laws and governmental regulations.

42.NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant agree and acknowledge that this Lease has been freely negotiated by Landlord and Tenant. In any event of any ambiguity, controversy, dispute or disagreement over the interpretation, validity or enforceability of this Lease or any of its covenants, terms or conditions, no inference, presumption or conclusion whatsoever shall be drawn against Tenant by virtue of Tenant’s having drafted this Lease.

43.SUCCESSORS AND ASSIGNS; AFFILIATES. The covenants and agreements contained in this Lease shall bind and inure to the benefit of the successors and assigns of each party. As used in this Lease “Affiliate” (whether or not capitalized) shall mean, with respect to any person, any person controlled by, controlling, or under common control with such person; and “control” shall mean any direct ownership interest or right through the exercise of voting or approval rights or otherwise, to exercise decision-making authority generally.

44.CAPTIONS. The captions preceding the Sections of this Lease are intended only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Lease or the intent of any provision hereof.

45.INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be

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affected thereby and each and every provision of this Lease shall be enforceable to the fullest extent permitted by law.

46.CHOICE OF LAW/JURISDICTION. This Lease, and the rights and obligations of the parties hereto, shall be interpreted and construed in accordance with the laws where the Demised Premises are located (the “State”), without regard to the State’s internal conflict of law principles. Any disputes arising out of this Lease or between Landlord and Tenant shall be subject to the exclusive jurisdiction of the state courts of the State.

47.NO WAIVER. The failure of either party to seek redress for violation of or to insist upon the strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. Without limitation, no written consent by Landlord or Tenant to any act or omission that otherwise would be a default shall be construed to permit other similar acts or omissions. Neither party& #146;s failure to seek redress for violation or to insist upon the strict performance of any covenant, nor the receipt by Landlord of rent with knowledge of any breach of covenant, shall be deemed a consent to or waiver of such breach. No breach of covenant shall be implied to have been waived unless such is in writing, signed by the party benefiting from such covenant and delivered to the other party; and no acceptance by Landlord of a lesser sum than the Fixed Annual Rent, Additional Rent or any other sum due shall be deemed to be other than on account of the installment of such rent or other sum due. Nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy. The delivery of keys (or any other act) to Landlord shall not operate as a termination of the Term or an acceptance or surrender of the Demised Premises. The acceptance by Landlord of any rent following the giving of any default and/or termination notice shall not be deemed a waiver of such notice.

48.ATTORNEY’S FEES. In the event that either Landlord or Tenant employ an attorney to enforce or defend any of the conditions, covenants, rights or obligations of this Lease (including, without limitation, a default by either party), then the prevailing party shall be entitled to all reasonable attorney fees and all other reasonable out-of-pocket litigation costs (including, but not limited to filing fees, expert reports and testimony, court costs an d other usual costs of litigation of this type) incurred by such prevailing party.

49.WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Lease or the Demised Premises.

50.MISCELLANEOUS. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant relating in any way to the Demised Premises and supersedes all prior agreements and dealings between them. There are no oral agreements between Landlord and Tenant relating to this Lease or the Demised Premises. This Lease may be amended only by a written instrument executed and delivered by both Landlord and Tenant. The provisions of this Lease shall bind Landlord and Tenant and their respective successors and assigns. Where the phrases “persons

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acting under” Landlord or Tenant or “persons claiming through” Landlord or Tenant or similar phrases are used, the persons included shall be assignees, sublessees, licensees or other transferees or successors of Landlord or Tenant as well as invitees or independent contractors of Landlord or Tenant, and all of the respective employees, servants, contractors, agents and invitees of Landlord, Tenant and any of the foregoing. As used herein, “monetary default” shall mean a default that can be substantially cured solely by the payment of money and nothing more and “non-monetary default” shall mean a default that cannot be substantially cured solely by the payment of money and northing more. If either party is granted any extension, election or other option, to be effective the exercise (and notice thereof) shall be unconditional, irrevocable and must be made strictly in accordance with the prescribed terms and times; otherwise its purported exercise shall be void and ineffective. The enumeration of specific examples of a general provisions or use of the word “including” shall not be construed as a limitation of the general provision. Unless a party’s approval or consent is required by the express terms of this Lease not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; the leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers or any relationship other than landlord and tenant. This Lease and all consents, notices, approvals and all other related documents may be reproduced by any party by any electronic means or by electronic, photographic or other reproduction process and the originals may be destroyed; and each party agrees that any reproductions shall be as admissible in evidence in any proceeding as the original itself (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and that any further reproduction of such reproduction shall likewise be admissible. If any payment in the nature of interest provided for in this Lease shall exceed the maximum interest permitted under controlling law, as established by final judgment of a court, then such interest shall instead be at the maximum permitted interest rate as established by such judgment. Landlord and Tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, and there are no warranties or representations other than those e xpressly set forth in this Lease. Without limitation, where Tenant in this Lease indemnifies or covenants for the benefit of present and future Fee Mortgagees, such agreements are for the benefit of present and future Fee Mortgagees as third party beneficiaries; and at the request of Landlord, Tenant from time to time will confirm such matters directly with such Fee Mortgagee.

51.COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. A facsimile, email, PDF or electronic signature shall be deemed an original signature.

52.INCORPORATION OF STATE LAW PROVISIONS. Certain provisions/ sections of this Lease and certain additional provisions/sections that are applicable or required by laws of the state in which the Demised Premises are located may be amended, described or otherwise set forth in more detail on Exhibit I attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Lease. In the event of any conflict betwe en such state law provisions and any provision herein, the state law provisions shall control.

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[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF this Lease has been duly executed under as of the Effective
Date.
WITNESS:
	WE APP WILMINGTON LLC, a
	Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:
	PATHMARK STORES, INC., a
	Delaware corporation
	By:
Name: Craig H. Feldman	Name:	Christopher W. McGarry
	Title:	Vice President and Secretary

Signature Page to Lease By and Between

WE APP WILMINGTON LLC and PATHMARK STORES, INC.

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EXHIBIT A

SITE PLAN OF DEMISED PREMISES

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EXHIBIT B1

LEGAL DESCRIPTION OF THE LAND

Premises A:

ALL that certain lot, piece or parcel of land with the improvements erected thereon, situate in Christiana Hundred, New Castle County and State of Delaware, being more particularly bounded and described in accordance with that certain ALTA/ACSM Land Title Survey prepared by Van DeMark & Lynch, Inc. for Pathmark Stores, Inc. dated July 6, 1998, as revised (File No 333l6-L) as follows to wit:

BEGINNING at a monument found on the northeasterly side of the Lancaster Pike, (S.R. 48) said point being a corner for lands now or formerly of Penn mark Real Estate Group, L.LC. (Deed Record 1848, Page 87), leased by Supermarkets General Corporation Deed Record X, Volume 110, Page 272, said northeasterly side of Lancaster Pike being distant northeasterly 53 feet therefrom at right angles thereto the centerline, said point Beginning distant the three following described courses and distances measured along the sides of the said Lancaster Pike from a corner of lands now or formerly of E.I. DuPont DeNemours & Company:

(1) North 62 degrees 13 minutes 60 seconds West, 242.24 feet to a point;

(2) North 27 degrees 08 minutes 30 seconds East, 5.63 feet to a set drill hole; and

(3) North 48 degrees 21 minutes 59 seconds West, 51.64 feet to the point of Beginning

THENCE from said point of Beginning and continuing along the various courses of the said northeast side of Lancaster Pike, the three following described courses and distances:

(1) North 62 degrees 13 minutes 50 seconds West, 197.03 feet to a found monument;

(2) North 70 degrees 23 minutes 36 seconds West, 53.52 feet to a found monument; and

(3) North 64 degrees 24 minutes 10 seconds West, 141.71 feet to a found monument in the line of lands said point being distant northeasterly 40.10 feet therefrom measured at right angles thereto the said centerline of the Lancaster Pike;

THENCE partially along the southeasterly line and along the northeasterly line of said lands now or formerly of Shellhorn & Hill Incorporated, the two following courses and distances:

(1) North 18 degrees 18 minutes 30 seconds East, 106.42 feet to a set iron pin; and

(2) North 62 degrees 13 minutes 50 seconds West 130.35 feet to a found monument in the line of lands now or formerly of Mother African UFCMP Church (Deed Record 1649, Page 27);

THENCE along lines of said lands now or formerly of Mother African UFCMP Church the three following described courses and distances;

(1) North 28 degrees 21 minutes 00 seconds East, 40.00 feet to a found monument;

(2) North 62 degrees 13 minutes 50 seconds West, 3.02 feet to a found monument; and

(3) North 27 degrees 35 minutes 03 seconds East, 250.00 feet to a point, a corner for lands now or formerly of Bellevue Office Plaza as shown on a Record Land Development Plan recorded in the Office of the Recorder of Deeds in and for New Castle County on Microfilm No. 6686;

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THENCE, partially along the southwesterly line of said lands now or formerly of Bellevue Office Plaza, South 62 degrees 13 minutes 50 seconds East, 538.93 feet to a set nail, a corner for said lands leased by Supermarkets General Corporation;

THENCE THEREBY, South 27 degrees 08 minutes 30 seconds West, 382.02 feet to a point on the said northeasterly side of Lancaster Pike and the point and place of Beginning.

Premises B:

ALL that certain parcel of land situate in Christiana Hundred, New Castle County and State of Delaware, being more particularly bounded and described as follows, to wit:

Beginning at a point on the northeasterly side of Lancaster Turnpike, at 70 feet wide, said point of Beginning being North 62 degrees 13 minutes 50 seconds West 242.24 feet measured along the said northeasterly side of Lancaster Turnpike from a corner common to lands of Commonwealth Trust Co., and lands now or formerly of E.I. DuPont deNemours & Co.; thence from said point of Beginning and along said northeasterly side of the Lancaster Turnpike, North 62 degrees 13 minutes 50 seconds West, 50.00 feet to a point, a corner for lands now or formerly of Lancaster Investments, Inc.; thence thereby North 27 degrees 08 minutes 30 seconds East 400.02 feet to a corner; thence continuing along the said line of lands of Lancaster Investments, Inc., South 62 degrees 13 minutes 50 seconds East 50.00 feet to a point; thence by a new line through lands of Commonwealth Trust Co. South 27 degrees 08 minutes 3 0 seconds West 400.02 feet to the first mentioned point and place of Beginning. Be the contents thereof what they may.

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EXHIBIT B2

TITLE MATTERS AND ENCUMBRANCES

1.Subject to sanitary sewer assessment and rent, not yet due and payable.

2.Right of Way Agreements recorded in Deed Record M, Vol. 98, Page 39, Deed Record K, Vol. 113, Page 270 and Deed Record W, Vol. 122, Page 75

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EXHIBIT C

REMEDIAL WORK

(Tenant Performs Construction with Landlord Reimbursement)

Reimbursement Cap: $375,000.00

Remedial Work Completion Date: the third anniversary of the Effective Date of the Lease

C. 1 Construction Documents. Tenant shall prepare, at Tenant’s expense, and deliver to Landlord Construction Documents (meaning plans and specifications prepared by design professionals licensed to prepare such plans and specifications which reasonably fix and describe the work to be performed by Tenant contractors) for roof replacements, parking area repairs and replacements, heating, ventilating and air conditioning upgrades, environmental remediation, asbestos abatement and automation improvements in an amount totaling at least the amount of the Reimbursement Cap, all as Landlord and Tenant shall reasonably and mutually agree. The Construction Documents shall substantially conform to and describe such work as so agreed, and when such Construction Documents are approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed, the work described therein s hall be the “Remedial Work” referred to herein. Tenant shall provide at least 6 copies of the Construction Documents to Landlord. Tenant shall be solely responsible for the liabilities and expenses of all architectural and engineering services relating to the Remedial Work and for the adequacy and completeness of the Construction Documents submitted to Landlord and for the Remedial Work itself, notwithstanding Landlord’s approval thereof.

C.2 Remedial Work Reimbursement. Upon Landlord’s approval of the Construction Documents showing the Remedial Work to be performed, Tenant shall cause the Remedial Work to be performed in accordance with all of the terms and requirements of the Lease including Exhibit G, and the reasonable out-of-pocket costs to Tenant of performing the Remedial Work shall be eligible for Reimbursement in the manner provided below up to but not in excess of the Reimbursement Cap listed above. All costs for the Remedial Work in excess of the Reimbursement Cap shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor. Any Remedial Work not completed by the Remedial Work Completion Date listed above shall be ineligible for reimbursement from Landlord, and such Remedial Work shall be paid for solely by Tenant.

Notwithstanding anything in the Lease to the contrary, prior to the Remedial Work Completion Date Tenant shall have no obligation to perform any Remedial Work if the cost of same will exceed the Reimbursement Cap, unless Tenant determines, in its sole, reasonable judgment, that such work is necessary and prudent for the proper maintenance and operation of the Demised Premises.

Reimbursement of the reasonable out-of-pocket costs to Tenant of performing Remedial Work up to the Reimbursement Cap and by the Remedial Work Completion Date shall be disbursed to Tenant by Landlord in no more than four disbursements the requests for each of which shall not

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be submitted more frequently than monthly. For each disbursement, Tenant shall submit a requisition package to Landlord with (1) an itemization of the costs being requisitioned, (2) a certificate by an officer of Tenant that all such costs are reasonable out-of-pocket costs to Tenant of performing Remedial Work and have been incurred and paid for by Tenant, that to the actual knowledge of Tenant the Remedial Work included within the requisition has been performed substantially in accordance with the Construction Documents and in accordance with the Lease, (3) appropriate back-up documentation including, without limitation, lien releases (in a form reasonably approved by Landlord) and paid invoices and bills and (4) a statement by Tenant’s chief financial officer that such officer knows of no default under the Lease on the part of Tenant nor of any event which with the giving of notice o r the passage of time or both could ripen into a default under the Lease. The final requisition package shall further include a copy of all applications for and copies of all governmental permits issued in connection with the Remedial Work and the plans referred to in Section 13 of the Lease for any Alterations. Notwithstanding anything herein or in the Lease to the contrary, Landlord shall not be obligated to reimburse any costs of Remedial Work if a default under the Lease has occurred and is continuing. Landlord shall pay the reimbursement to Tenant within thirty (30) days following Landlord’s receipt of the completed package. In the event that Landlord fails to pay the reimbursement within such thirty (30) day period, Tenant may deduct the reimbursebable amount against Rent due under the Lease.

C.3 Performance of Remedial Work by Tenant. No Remedial Work for which reimbursement is sought shall be performed except in accordance with the Construction Documents. In connection with its approval thereof, Landlord may delete from the Construction Documents any items or aspects of Remedial Work which in Landlord’s reasonable judgment (i) would increase the cost of operating the Building or performing any other work in the Building, (ii) are incompatible with the design, quality, equipment or systems of the Building, (iii) would require unusual expense to readapt the Premises to general grocery store use or (iv) otherwise do not comply with the provisions of this Lease. Prior to commencing any Remedial Work, Tenant shall submit to Landlord certificates of insurance on the part of Tenant contractors meeting the requirements of Exhibit G paragraph 1A (4). If any such Tenant contractor or any other person ever makes a claim against any Indemnitee (as such term is defined in Section 38) in connection with any Remedial Work, then Tenant shall indemnify such Indemnitee in the manner provided in the Lease against such claim.

C.4 Re-allocation of Reimbursement Cap. Upon the completion of the Remedial Work up to $20,000 of the Reimbursement Cap may be allocated to increase the “Reimbursement Cap” under any other lease between Tenant and any Affiliate of Landlord (except for that certain lease for space at 9210 Atlantic Avenue, Queens (Ozone Park), New York).

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EXHIBIT D

FORM OF SUBORDINATION, NON-DISTURBANCE AND

ATTORNMENT AGREEMENT

KEY NO:

THIS AGREEMENT, made as of                                     2010, by and among                                                      , a                                       , and its successo rs and assigns, having an office at                    (hereinafter together with its successors and assigns called “Mortgagee”), WE APP Wilmington LLC, a Delaware limited liability company, having an office c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 (hereinafter called “Landlord”) and Pathmark Stores, Inc., a Delaware corporation having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

WHEREAS, Mortgagee has made a loan, or is about to make a loan to Landlord in the original principal amount of $                   evidenced by a promissory Note secured by, among other securities, a mortgage or deed of trust (hereinafter, as the same may be amended, supplemented or otherwise modified from time to time, called the “Mortgage”) covering a parcel or parcels of land owned by Landlord and described on Exhibit A annexed hereto and made a part hereof, together with the improvements now or hereafter erected thereon (said parcel or parcels of land and improvements thereon being hereinafter called the “Mortgaged Property”);

WHEREAS, by a certain lease heretofore entered into between Landlord and Tenant dated as of November    2010 and amended by [   ] (said lease and amendments being hereinafter collectively called the “Lease”), Landlord leased to Tenant the Mortgaged Premises together with the building now or hereafter erected on all or a portion of said premises (the Mortgaged Premises and the improvements on or to be erected thereon being thereinafter called the “Demised Premises”);

WHEREAS, a Memorandum of Lease dated November     2010 was recorded on November     , 2010 in the           in Book                      , Page              ;

WHEREAS, a copy of the Lease has been delivered to Mortgagee, the receipt of which is hereby acknowledged; and

WHEREAS, Mortgagee is unwilling to make said loan to Landlord unless the Lease is subordinate to the lien of the Mortgage; and

WHEREAS, Section 16 of the Lease provides that the Lease shall become subject and subordinate to the lien of a mortgage of the fee interest of the Demised Premises if and when a non-disturbance agreement is entered into with respect to such mortgage; and

WHEREAS, the parties desire to subordinate the Lease to the lien of the Mortgage, and to provide for the non-disturbance of Tenant by Mortgagee.

447

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.Mortgagee hereby consents to and approves the Lease.

2.Tenant covenants and agrees with Mortgagee that the Lease and any extensions, renewals, replacements or modifications thereof and Tenant’s interest in the premises under the Lease are and at all times shall subject and subordinate to the lien of the Mortgage, without regard to the order of priority of recording of the Mortgage and the Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.Tenant certifies that the Lease is presently in full force and effect.

4.Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default (beyond any applicable notice and cure period) in the payment of fixed rent as set forth in the Lease, or in the performance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed:

A.Tenant shall not be named or joined as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond or note or other obligations secured thereby unless required by law to do so; and

B.The possession by Tenant of the Demised Premises and the Tenant’s rights thereto shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof be terminated or otherwise affected by (i) any suit, action or proceeding upon the Mortgage or the bond or note or other obligation secured thereby, or for the foreclosure of the Mortgage or the enforcement of any rights under the Mortgage or any other documents held by the Mortgagee, or by any judicial sale or execution or other sale of the Mortgaged Property, or by any deed give n in lieu of foreclosure, or by the exercise of any other rights given to the Mortgagee by any other documents or as a matter of law, or (ii) any default under the Mortgage or the bond or note or other obligation secured thereby.

5.Mortgagee hereby acknowledges and agrees that all trade fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant from a Landlord/Owner in the Demised Premises shall be subject to the provisions of Section 17 of the Lease.

6.If the Mortgagee shall become the owner of the Mortgaged Property by reason of foreclosure of the Mortgage or otherwise, or if the Mortgaged Property shall be sold as a result of any action or proceeding to foreclose the Mortgage or by a deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing any new lease, as a direct lease between Tenant, as tenant thereunder, and the then owner of the Mortgaged Property, as landlord thereunder, upon all of the same terms, covenants and provisions contained in the Lease, and in such event:

448

A.Tenant shall be bound to such new owner under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) and Tenant hereby agrees to attorn to such new owner and to recognize such new owner as landlord under the Lease; and

B.Such new owner shall be bound to Tenant under all of the terms, covenants and provisions of the Lease for the remainder of the term thereof (including the Renewal Periods, if Tenant elects or has elected to exercise its options to extend the term) which terms, covenants and provisions such new owner hereby agrees to assume and perform; provided, however, that such new owner shall not be (i) obligated to complete any construction work required to be done by Landlord within or outside of the Demised Premises pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant; however this provision shall not relieve such new owner from any repair or maintenance obligations of Landlord expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property or impair any express setoff rights of Tenant expressly set forth in the Lease accruing or arising following new owner’s acquisition of fee title to the Mortgaged Property; (ii) required to make any repairs to the Mortgaged Property or to the Demised Premises or to perform any other construction or other work, including without limitation the restoration of the Demised Premises following any casualty or taking; (iii) liable for the return of security deposits or letters of credit, if any, paid or delivered by or on behalf of Tenant to Landlord, except to the extent such sums are actually received by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (iv) bound by any pa yment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless such sums are actually received by Mortgagee or if such prepayment shall have been expressly approved of in writing by such new owner (or any Mortgagee if such Mortgagee is not the new owner); (v) bound by any agreement amending, modifying or terminating the Lease made without Mortgagee’s prior written consent; (vi) bound by any assignment of the Lease or sublease of the Demised Premises, or any portion thereof, made prior to the time such new owner succeeded to Landlord’s interest other than if made pursuant to the provisions of the Lease; (vii) liable on account of any default on the part of Landlord occurring prior to such new owner’s succeeding to Landlord’s estate; or (viii) subject to any counterclaims, offsets or defenses that Tenant might have against Landlord.

7.If Landlord shall default in the performance of the Lease Tenant shall give written notice thereof to Mortgagee and Mortgagee shall have the right, but not the obligation, to cure such default in accordance with Section 23 of the Lease (and as provided therein the Mortgagee shall be entitled to such further time to cure as may be reasonably necessary for the Mortgagee to remove any stay in bankruptcy and/or to commence and complete foreclosure proceedings or remove any cause beyond the Mortgagee’s reasonable control impairing its abil ity to cure or remedy, to obtain possession of the Demised Premises and thereafter to commence and diligently prosecute such cure or remedy to completion)

8.Landlord has agreed in the Mortgage and other loan documents that the rents payable under the Lease shall be paid directly by Tenant to Mortgagee upon the occurrence of a default by Landlord under the Mortgage or any other loan document. Accordingly, after notice is given by Mortgagee to Tenant that the rents under the Lease should be paid to or at the

449

direction of Mortgagee, Tenant shall pay to Mortgagee, or in accordance with the directions of Mortgagee, all rents and other monies thereafter due and to become due under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage or any other loan document. Landlord hereby waives any right, claim or demand it may have nor or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment to Mortgagee shall discharge the obligations of Mortgagee to make such payment under the Lease.

9.Any notices or communications given under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, (a) if to Mortgagee at the address of Mortgagee as hereinabove set forth or at such other address as Mortgagee may designate by notice, or (b) if to Landlord at the address of Landlord as hereinabove, or at such other address as Landlord may designate by notice, or (c) if to Tenant, then one copy shall be delivered to the attention of the Senior Vice President of Real Estate of Tenant, another shall be delivered to the attention of General Counsel of Tenant, and another shall be delivered to the Director of Properties & Administration of Tenant, all at 2 Paragon Drive, Montvale, New Jersey 07645 or at such other addresses as Tenant may designate by notice. During the period of any postal strike or other interference with the mail, personal delivery shall be substituted for registered or certified mail.

10.This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.

11.This Agreement contains the entire agreement between the parties and cannot be changed, modified, waived or cancelled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

12.This Agreement and the covenants herein contained are intended to run with and bind all lands affected thereby.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

WITNESS:
	MORTGAGEE:
	, a
Name:	By:
	Name:
	Title:

450

	LANDLORD:
	WE APP WILMINGTON LLC, a
	Delaware limited liability company
Name:	By:
	Name:
	Title:
WITNESS:	TENANT:
	PATHMARK STORES, INC., a
	Delaware corporation
Name:
	By:
	Name:	Christopher W. McGarry
	Title:	Vice President and Secretary

451

WITNESS:

MORTGAGEE ACKNOWLEDGMENT

STATE OF                      )

SS:

COUNTY OF                  )

ON THIS               day of                 2010, before me, the subscriber, personally appeared                to me known, who being by me duly sworn, did depose and say that he is               of                the corporation described in and whi ch executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

LANDLORD ACKNOWLEDGMENT

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this                    day of                           2010, before me, the undersigned notary public, personally appeared                                            , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as  &n bsp;              of WE APP Wilmington LLC.

Notary Public

My Commission Expires:

452

TENANT ACKNOWLEDGMENT

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS                               day of                  , 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

453

EXHIBIT A

LEGAL DESCRIPTION OF MORTGAGED PROPERTY

(Attached)

454

EXHIBIT E

KEY NO:                                                    

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE made as of November          , 2010 by WE APP WILMINGTON LLC, a Delaware limited liability company, having an office at c/o Winstanley Enterprises, LLC, 150 Baker Avenue Extension, Suite 303 Concord, Massachusetts 01742 Attn: Adam Winstanley (hereinafter called “Landlord”), and PATHMARK STORES, INC., a Delaware corporation, having an office at 2 Paragon Drive, Montvale, New Jersey 07645 (hereinafter called “Tenant”).

W I T N E S S E T H:

1.For and in consideration of the sum of TEN and no/100 Dollars ($10.00) and of other valuable considerations paid by Tenant to Landlord, the receipt and sufficiency of which are hereby acknowledged by Landlord, Tenant and Tenant hereby takes from Landlord that certain parcel of land (hereinafter called “Land”) described on Exhibit B and the buildings and other improvements now or hereafter erected on the Land together with the benefit of any and all easements, appurtenances, rights and privileges now or hereafter belonging thereto. The land is currently improved by an existing building consisting of 48,622 square feet of space (the “Building), as more particularly shown on the site plan attached hereto as Exhibit A. The Building and any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements”. The Land and any Improvements now or hereafter erected thereon are hereinafter collectively called the “Demised Premises.” The Demised Premises have been leased to Tenant upon and subject to the covenants and agreements set forth in a certain agreement between Landlord and Tenant bearing even date herewith (hereinafter called the “Lease”).

2.The Lease is in effect. The original term of the Lease shall continue to and include the date which is twenty (20) years after the day before the Commencement Date if the Commencement Date is the first day of a month, or twenty years (20) years after the last day of the month in which the Commencement Date occurs if the Commencement Date is not the first day of a month.

3.Tenant has the right and option to extend the term of the Lease from the date upon which it would otherwise expire for ten (10) separate renewal periods of five (5) years each (each such period being known as a “Renewal Period”). Said right and option, if exercised by Tenant, shall be in accordance with the terms and conditions of Section 4 of the Lease.

4.The Lease contains the entire agreement between the parties. All persons are hereby put on notice of the existence of the Lease and are referred to the Lease for its terms and conditions. The Lease is on file in the offices of Tenant and the Landlord as hereinabove set forth.

5.This Memorandum of Lease is prepared, signed and acknowledged solely for recording purposes under the laws of the State of Delaware, and is in no way intended to change,

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alter, modify, amend or in any other way affect the rights, duties and obligations of Landlord and Tenant pursuant to the Lease; it being specifically understood and agreed between the parties that each has rights, duties and obligations imposed upon it in the Lease which are not expressly contained herein but are included herein by reference.

6. Upon expiration of the Lease term Landlord and its successors and assigns has irrevocably been named attorney-in-fact by Tenant in the Lease to execute, deliver and record a notice of termination of this Memorandum.

IN WITNESS WHEREOF this Memorandum of Lease has been duly executed as of the day and year first above written.

WITNESS:	WE APP WILMINGTON LLC, a
	Delaware limited liability company
Name:	By:
		Name:
		Title:
WITNESS:	PATHMARK STORES, INC., a
	Delaware corporation
Name: Craig H. Feldman	By:
	Name: Christopher W. McGarry
	Title: Vice President and Secretary

456

EXHIBIT A

DEMISED PREMISES

457

EXHIBIT B

LEGAL DESCRIPTION OF THE LAND

458

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.

On this           day of November 2010, before me, the undersigned notary public, personally appeared                                                , proved to me through satisfactory evidence of identification, which was a [current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his/her free act and deed as                             ;           of WE APP Wilmington LLC.

Notary Public

My Commission Expires:

STATE OF NEW JERSEY)

SS

COUNTY OF BERGEN)

ON THIS           day of November, 2010, before me, the subscriber, personally came Christopher W. McGarry, to me known, who being by me duly sworn, did depose and say that he is the Vice President and Secretary of Pathmark Stores, Inc., the corporation described in and which executed the within instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written.

Notary Public

459

EXHIBIT F

UNCONDITIONAL GUARANTY

WHEREAS, Pathmark Stores, Inc., a Delaware corporation (“Tenant”) desires to enter into a certain lease (“Lease”) of even date concerning Demised Premises known as 3901 Lancaster Pike, Wilmington, Delaware, with WE APP Wilmington LLC, a Delaware limited liability company (“Landlord”). (Terms used herein and not otherwise defined will have the meaning given in the Lease.)

WHEREAS, as an inducement to entering into the Lease Landlord has required that the undersigned The Great Atlantic & Pacific Tea Company, Inc. (“Guarantor”) unconditionally guarantees the performance of all obligations of Tenant under the Lease.

NOW, THEREFORE, for good and valuable consideration, intending to be legally bound hereby, Guarantor agrees as follows:

1.             Guarantor unconditionally and absolutely guarantees to Landlord (which shall include its legal representatives, successors and assigns) the due and punctual performance of each and all of the Tenant’s obligations under or related to the Lease, including the timely payment of all sums due therein. Tenant’s obligations hereby guaranteed include, without limitation, those arising under amendments or modifications to the Lease hereafter entered into by Tenant and Landlord, all of which shall be so guaranteed even though Guarantor hereafter does not consent to or approve the same (Guarantor hereby waiving all rights of consent or approval with respect to such amendments or modifications).

2.             Guarantor waives presentment for payment or performance, notice of nonpayment or performance, notice of default, demand, protest or notice or acceptance of this Guaranty, any rights Guarantor may have by reason of any forbearance, modification, amendment, extension or any indulgence whatsoever that Landlord may grant or to which Landlord and the Tenant may agree with respect to the Lease, any and all notice of every kind to which Guarantor might otherwise be entitled with respect to the incurring of any further obligation or liability by Tenant to Landlord, demand for payment, the presentment of any instrument for payment, the protest or nonpayment thereof and any and all defenses whatsoever excepting only Tenant’s performance as required by the terms of the Lease. Guarantor also waives, unless and until all of the obligations of Tenant are fully paid and performed, any right to be subrogated in whole or in part to any right or claim of Landlord against Tenant and any right to require the marshalling of any assets of the Tenant, which right of subrogation or marshalling might otherwise arise from any partial payment by the Guarantor. It is expressly understood and agreed that Guarantor’s liability hereunder shall be unaffected by (i) any amendment or modification whatsoever of the provisions of the Lease, (ii) any extension of time for performance under the Lease, (iii) any delay by Landlord in exercising any right under the Lease or this Guaranty (none of which shall ever operate as a waiver of such right), or (iv) the release of Tenant or any other guarantor from performance or observance of any of the agreements or conditions contained in the Lease by operation of law or otherwise, whether made with or without notice to Guarantor, including without limitation any impairment, modification, ch ange, release, rejection, disaffirmance, or limitation of the liability of Tenant, or any other guarantor of the Lease, of their estate in

460

bankruptcy or insolvency resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other similar or insolvency statute, or from the decision of any court. Guarantor covenants that Guarantor will cause Tenant to maintain and preserve the enforceability of the Lease, as the same may hereafter be modified or amended, and will not permit it to take or to fail to take action of any kind the taking of which or the failure to take might be the basis for a claim that Guarantor has any defense to its obligation hereunder other than timely performance in full of the Lease in accordance with its terms. The joint and several liability of Guarantor hereunder shall exist irrespective of the validity or enforceability of the Lease.

3.             This shall be an agreement of suretyship as well as of guaranty, and Landlord, without being required to proceed first against Tenant or any other person or entity, may proceed directly against Guarantor whenever Tenant fails to make any payment due or fails to perform any obligation now or hereafter owed to Landlord without first resorting to or exhausting any other remedy and without first having recourse to the Lease; provided, however, that nothing herein contained shall prevent Landlord from suing on the Lease with or without making Guarantor a party to the suit or from exercising any other rights thereunder and if such suit, or other remedy, is availed of, only the net proceeds therefrom, after deduction of all Landlord’s Costs of Collection (defined below) shall be applied in reduction of the amount then due on this Guaranty.

4.             Guarantor agrees to pay to Landlord, on demand, all costs and expenses, including reasonable attorneys’ fees and litigation expenses, which Landlord may incur in the enforcement of Tenant’s obligations under the Lease or the liability of Guarantor hereunder (“Costs of Collection”). “Costs of Collection” includes, without limitation, all out of pocket expenses incurred by the Landlord’s attorneys and all costs incurred by Landlord including, without limitation, costs and expenses associated with travel on behalf of Landlord, which costs and expenses are related to or in respect of Landlord’s efforts to collect and/or to enforce any of the obligations and/or to enforce any of its rights, remedies or powers against or in respect of either or both Tenant or Guarantor (whe ther or not suit is instituted in connection with such efforts).

5.             Guarantor represents and warrants to Landlord that (i) it has either examined the Lease or has had an opportunity to examine the Lease and has waived the right to examine; (ii) that it (and the individual acting on its behalf) has the full power, authority and legal right to execute and deliver this Guaranty; (iii) that this Guaranty is a binding legal obligation and is fully enforceable against Guarantor in accordance with its terms; (iv) that there is no action or proceeding pending or, to its knowledge, threatened against Guarantor before any court or administrative agency which might result in any material adverse change in its business or condition or in its assets; (v) that neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions th ereof will constitute a default under or result in the creation of any lien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which it is now a party or by which Guarantor may be bound; and (vi) that Guarantor is the sole owner of all the common stock of Tenant and expects to derive financial benefit from the Lease.

461

6.             This Agreement shall be binding upon Guarantor and its legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its legal representatives, successors and assigns, and is irrevocable until released in writing by Landlord. Each and every right, remedy and power hereby granted to Landlord or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by Landlord at any time and from time to time. The validity, construction and performance of this Guaranty shall be governed by the laws of the State where the Demised Premises are located (the “State”), without regard to conflict of law principles. If any clause or provision of this Guaranty should be held illegal or invalid by any court, the invalidity of such clause or provisions shall not affect any of the remaining clauses or provisions hereof. In case any agreement or obligation contained in this Guaranty should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Guarantor, as the case may be, to the full extent permitted by law. Each and every default hereunder or under the Lease shall give rise to a separate cause of action hereunder. The obligations and liabilities of hereunder shall be joint and several with any other guarantees given to Landlord in connection with the Lease. This Guaranty may be amended only by instrument in writing executed and delivered by both Landlord and Tenant. The provisions of this Guaranty shall bind Guarantor and its respective successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty and all consents, notices, approvals and all other documents relating hereto may be reproduced by photographic, microfilm, microfiche or ot her reproduction process and the originals thereof may be destroyed; and each party agrees that any reproductions shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business) and that any further reproduction of such reproduction shall likewise be admissible in evidence.

7.             Guarantor consents to and agrees that the courts of the State shall have personal jurisdiction over Guarantor for any action brought on this Guaranty including the right to grant judgment against Guarantor personally together with interest on any judgment obtained by Landlord at the interest rate set forth in the Lease for late payments (but if the same shall be unlawful for any reason, then at the highest permissible interest rate). Guarantor further agrees and consents that venue, if any, for any such action shall be as set forth in the Lease. Guarantor waives and relinquishes any and all rights to removal of any such action to any other court. Guarantor also waives trial by jury in any judicial proceeding involving any matter in any way arising out of or relating to this Guaranty or the Lease.

8.             Any notice, communication, request or other document or demand made under this Guaranty shall be in writing and shall be deemed given at the earlier of (i) the date received or (ii) three (3) business days after the date deposited in a United States Postal Service Depository, postage prepaid first class certified or registered mail, return receipt requested, addressed to Guarantor or Landlord, as the case may be, at the respective addresses set forth opposite their names below:

462

Landlord:

WE APP Wilmington LLC

c/o Winstanley Enterprises, LLC

150 Baker Avenue Extension, Suite 303

Concord, MA 01742

Attn. Adam Winstanley

with a copy similarly sent to:

DLA Piper LLP (US)

33 Arch Street, 26th Floor

Boston, MA 02110

Attention: Daniel A. Taylor, Esq. or Primo Fontana, Esq.

Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: Senior Vice President of Real Estate

with a copy similarly sent to

The Great Atlantic & Pacific Tea Company, Inc.

2 Paragon Drive

Montvale, New Jersey 07645

Attn: General Counsel

Either party may change an address to which any such notice, communication, request or other document or demand is to be delivered to it or delivery of copies thereof by furnishing written notice of such change to the other party. Each party shall, when giving notices, send at least one (1) copy by Federal Express, U.S. Express Mail, or other overnight delivery service, to the addressee.

IN WITNESS WHEREOF, Guarantor has executed and sealed this Guaranty the day of November         , 2010.

WITNESS:	THE GREAT ATLANTIC & PACIFIC
	TEA COMPANY, INC., a Maryland corporation
	By:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: Senior Vice President

463

EXHIBIT G

INSURANCE

This Exhibit G shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease.

1.               INSURANCE.

A. Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Demised Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

(1)             Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. Notwithstanding anything to the contrary contained herein, Tenant’s obligation to maintain general liability insurance may be satisfied through a program of self-insurance whereby Tenant self-insures the first $3,000,000.00 per claim as long as the program is supported by an A-rated insurance company and its third party administrator.

(2)             Property insurance covering property damage and business interruption for the entire Demised Premises. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant’s property on the Demised Premises. Such insurance shall name Landlord and Fee Mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, terrorism, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall re asonably request from time to time and in amounts that meet any co insurance clause of the policies of insurance with a deductible amount not to exceed $750,000. Such insurance shall include rent continuation coverage of no less than twelve (12) months. Such policy or policies shall provide that the proceeds of any loss shall be payable to Landlord and Tenant and to the holder (as its interest may appear) of any Fee Mortgage to which this Lease is subordinate so long as such holder and future holders of such Fee Mortgage are obligated to apply proceeds of insurance in the manner provided for in this Lease.

464

(3)             Workers’ Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owned, leased, hired and non owned vehicles) with a limit of at least $1,000,000 Combined Single Limit-Bodily Injury & Property Damage.

(4)             Tenant shall purchase or shall cause each Tenant contractor performing work on the Demised Premises to carry insurance protecting against claims set forth below which may arise out of or result from the contractor’s operations on the Premises and naming Landlord, Landlord’s management, leasing and development agents as additional insureds for Premises Operations and Completed Operations. Waiver of Subrogation to apply under all policies.

(1)           claims under workers’ or workmen’s compensation, disability benefit and other similar employee benefit acts—in amounts as required by law;

(2)           claims for damages because of bodily injury, occupational sickness or disease, or death of his employees or any other person and other personal injury and motor vehicle liability — Public Liability - Single Limit (Combined) Per Occurrence. Bodily Injury/Property Damage $1,000,000 w/ $2,000,000 General/Completed Operations Aggregate. Automobile Liability - Single Limit (Combined) Per Occurrence Bodily Injury and Property Damage $1,000,000. Excess Liability Umbrella covering all above items $5,000,000 per Occurrence; and

(3)           claims for damages, other than the work of the contractor itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom — $1,000,000 per occurrence.

Tenant shall, prior to the commencement of the Term and on each anniversary of the renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. On all liability insurance Landlord, (and if requested, Landlord’s Fee Mortgagees and Landlord’s management, leasing and development agents shall be named as additional insureds with such coverage to be primary. Tenant agrees from time to time to deliver true and complete copies of all policies to Landlord upon request.

465

EXHIBIT H

PERCENTAGE RENT

If any Percentage Rent Event occurs as described in Section 5(E) of the Lease, then the following provisions shall immediately take effect, shall become a part of the Lease for the remainder of the Term and Tenant shall, in addition to all other rent provided for in the Lease, also pay Percentage Rent to Landlord in accordance with the following:

Section 5(E) Percentage Rent

5(E)(1) Percentage Rent - General Covenant. As used in this Section 5(E) the following terms have these meanings:

“Percentage Rent Rate” means one percent (1%) of Excess Gross Sales.

“Excess Gross Sales” means Gross Sales above the Gross Sales Benchmark.

“Gross Sales” has the meaning given below in Section 5 (E)(2).

“Gross Sales Benchmark” means $32,500,000.00, which amount is increased by five (5%) every five years at the same time Fixed Annual Rent increases under Section 5 (A) of the Lease.

Tenant covenants and agrees to pay to Landlord, as Additional Rent, the amount, if any, of Tenant’s Excess Gross Sales during any calendar month or part thereof during the Term, multiplied by the Percentage Rent Rate (“Percentage Rent”). (For any period less than a full calendar month the Excess Gross Sales and the Gross Sales Benchmark shall be prorated.) Such amounts payable hereunder are referred to as “Percentage Rent” and are also included in the term “Additional Rent.”

5 (E)(2) Gross Sales - Definition. “Gross Sales” means the total amount in dollars of the actual price charged (including finance charges), by Tenant and any sublease, assignee, licensee or other person conducting sales from or with respect to the Demised Premises, whether for cash or on credit, for all sales of merchandise, food, beverages, services, gift or merchandise certificates, and all other receipts of business conducted at, in, on, about or from the Premises, including, but not limited to, all mail or telephone orders, all internet sales, and all catalog sales and all home delivery sales received or filled at, from or with respect to the Premises, and including all deposits not refunded to purchasers, all orders taken in, from or with respect to the Premises, whether or not such orders are filled elsewhere, receipts of sales through any vending machine or other c oin or token operated device or otherwise at, in, on, about, from or with respect to the Premises, and sales and receipts occurring or arising as a result of solicitation off the Premises conducted by personnel operating from or reporting to, or under the supervision of any employee of Tenant located at the Demised Premises. Gross Sales shall not, however, include any separately stated sums collected and remitted for any retail sales tax or retail excise tax imposed by any duly constituted governmental authority, nor shall they include any exchange of goods or merchandise between the stores of Tenant where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and neither for the purpose of consummating a sale which has theretofore been made at, in, on, about or from the Premises nor for the purpose of depriving Landlord of the benefits of a sale which otherwise

466

would be made at, in, on, about, from or with respect to the Premises, nor the amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is thereafter returned by the purchaser and accepted by Tenant, nor sales of fixtures which are not a part of Tenant’s stock in trade. Each sale upon installment, credit or layaway shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payments from its customers, and no deduction shall be allowed for uncollectible payment by customer or uncollected or uncollectible credit accounts.

5(E)(3) Records and Reporting of Gross Sales. Tenant shall utilize, and cause to be utilized, cash registers equipped with consecutive serialized tapes and/or such other devices for recording sales as are normally used in Tenant’s type of business to record all sales and Tenant shall keep for at least 36 months after expiration of each calendar year or part thereof during the Term, full, true and accurate books of account and records (“books”) conforming to generally accepted accounting principles showing all Gross Sales transacted at, in, from and upon the Premises for such calendar year or part thereof, including all tax reports, dated cash register tapes, sales slips, sales checks, sales books, bank deposit records and other supporting data. Such books shall be kept on the Premises during the Term. Within fifteen (15) days after the end of each calendar mon th or portion thereof included in the Term, Tenant shall furnish to Landlord a statement of Gross Sales transacted during such previous month or portion thereof; and on or before each February 1 included in the Term and within thirty (30) days after the end of the Term Tenant shall furnish to Landlord a statement (the “Annual Statement”) certified by an independent public accountant of Gross Sales itemized on a calendar month by calendar month basis transacted during the preceding calendar year or part thereof. In the event of Tenant’s failure to furnish any statement of Gross Sales required hereunder, in addition to all other remedies afforded it under this Lease, Landlord shall be entitled to have an accountant of Landlord’s selection conduct an audit of Tenant’s books for such period or periods for which Tenant has failed to furnish such statements. Such audit shall be at Tenant’s expense and Tenant shall promptly reimburse Landlord for the costs of such audit. Al l such costs shall be deemed additional charges. Notwithstanding the foregoing, Landlord shall have the right from time to time by its accountants or representatives to audit all statements of Gross Sales and in connection with such audits to examine all of Tenant’s books (including all supporting data and any other records from which Gross Sales may be tested or determined) of Gross Sales; and Tenant shall make all books readily available for such examination. Failure of Tenant to make all books readily available for such examination shall be deemed a default under this Lease; and in addition to all other remedies afforded it under this Lease, Tenant shall promptly reimburse Landlord for the costs of such audit. All such costs shall be deemed additional charges. If any such audit discloses that the actual Gross Sales for any month transacted by Tenant exceed those reported by more than two percent, Tenant shall forthwith pay to Landlord the cost of such audit and examination together with any additiona l Percentage Rent payable to Landlord. Any information obtained by Landlord pursuant to the provisions of this Section shall be treated as confidential, except in any litigation or arbitration proceedings between the parties, and, except further, that Landlord may disclose such information to existing Lenders and to prospective buyers and lenders.

5 (E)(4) Payment. On or before the 15th day after the expiration of each full or partial calendar month included in the Term, Tenant shall pay all Percentage Rent due for such prior

467

month to Landlord without demand, provided that if such amount exceeds the Percentage Rent that would be payable with respect to such month if Percentage Rent were calculated on the basis of Gross Sales for all months elapsed in the then current calendar year, Tenant shall not be required to pay any amount on account of such month unless and until such amount shall later be payable as part of the annual adjustment. Upon receipt by Landlord of each Annual Statement of Gross Sales there shall be an adjustment between Landlord and Tenant to the end that Landlord shall receive the exact amount of Percentage Rent due hereunder. Any overpayments by Tenant hereunder shall be credited against the next payments due under this Section. Any underpayments by Tenant shall be immediately due and payable. With respect to the calendar year in which the Term ends, the adjustments shall be prorated for the portion of the calenda r year included in the Term.

468

EXHIBIT I

LOCAL LAW ADDENDUM

(Attached)

469

Lease Addendum (DE)

This Lease Addendum (“Addendum”) is supplemental to and made a part of that certain Lease dated as of November     , 2010 (the “Lease”) by and between WE APP Wilmington LLC (“Landlord”) and Pathmark Stores, Inc. (“Tenant”). Capitalized terms used in this Addendum without definition shall have the meanings set forth in the Lease. This Addendum is to be construed as supplemental to, and part of, the Lease. In the event of any inconsistency between the Lease and this Addendum, the terms and provisions of this Addendum shall prevail.

Notwithstanding the terms and conditions contained in the Lease, and to the limited extent hereof, the parties agree as follows:

1.               Notwithstanding any provision contained in Section 7(G) of the Lease to the contrary, the term “Taxes” as it is used in the Lease shall include, without limitation, any and all taxes and license fees required to be paid by Landlord under 30 Del. C. § 2301(a)(6) and 30 Del. C. § 2301(d).

2.                In addition to all other remedies of Landlord provided in the Lease, Landlord may maintain an action for summary possession under 25 Del. C. § 5702 for any default of Tenant as provided in Section 25 of the Lease or for any other breach by Tenant of the terms, covenants and conditions contained in the Lease, including, without limitation, the holding over in possession of Tenant after the Expiration Date or earlier termination of the Lease.

3.               Notwithstanding any provision contained in Section 22 of the Lease to the contrary, Tenant’s holding over in possession of the Demised Premises after the Expiration Date or earlier termination of the Lease, including, without limitation, the collection of rent by Landlord during the period of such holding over, shall in no way constitute Landlord’s permission to Tenant to hold over in possession of the Demised Premises after the Expiration Date or earlier termination of the Lease.

470

EXHIBIT J

Confidentiality Agreement

(Attached)

471

CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of                                   , 2010 (the “Effective Date”) by and between [TENANT], a                              , having an address at                                           (“Company”) and                 ;              , a                              , having an address at                                   (“Disclosee”).

In connection with Disclosee’s interest in obtaining information concerning the business of Company, Company is furnishing or has furnished Disclosee with certain written information concerning Company’s gross sales that is either non-public, confidential or proprietary in nature. This information furnished to Disclosee or its affiliates, agents, representatives or employees (“Representatives”), together with analyses, compilations, forecasts, studies or other documents prepared by Disclosee or its Representatives that contain or otherwise reflect such information is hereinafter referred to as the “Information.” In consideration of Company furnishing Disclosee with the Information, Disclosee agrees that:

1.             The Information is Company’s property and will be kept confidential and shall not, without Company’s prior written consent, be disclosed by Disclosee or Representatives in any manner whatsoever, in whole or in part, and shall not be used by Disclosee or its Representatives in any manner to compete with the business of Company. Moreover, Disclosee may reveal the Information only to its Representatives who need to know the Information, are informed by Disclosee of the confidential nature of the Information and who shall agree to act in accordance with the terms and conditions of this Agreement. Disclosee shall be responsible for any breach of this Agreement by its Representatives.

2.             The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a disclosure by Disclosee or its Representatives, or (ii) become available to Disclosee on a non-confidential basis from a source (other than Company or its Representatives) that is not prohibited from disclosing such Information to Disclosee by a legal, contractual or fiduciary obligation to Company; or (iii) must be disclosed in order to comply with any applicable law, order, regulation or ruling; (iv) is already known to Disclosee or its Representatives or is already in its or their possession prior to disclosure by Company hereunder, or (v) is independently developed by Disclosee or its Representatives without reference to the Information.

3.             In the event that Disclosee or anyone to whom Disclosee transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Disclosee will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, Disclosee will furnish only that portion of the Information that Disclosee is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

4.             Disclosee acknowledges that remedies at law may be inadequate or protect against breach of this Agreement, and Disclosee hereby in advance agrees that Company may seek injunctive relief without proof of actual damages. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of law principles. The exclusive jurisdiction for any disputes concerning this Agreement shall be the Superior Court of New Jersey,

472

Bergen County, and the parties hereby submit to such jurisdiction and waive all defenses relating to jurisdiction, venue and forum non convenience.

5.             Disclosee hereby defends, indemnifies and holds harmless Company and its Representatives and their respective successors and assigns against and from any loss, liability or expense, including attorney’s fees, arising out of any uncured breach by Disclosee or by its Representatives of any of the terms of this Agreement

6.             This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement. A facsimile, email, pdf or electronic signature shall be deemed an original signature.

[SIGNATURE PAGE FOLLOWS]

473

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

COMPANY:

[TENANT], a

By:

Name:

Title:

DISCLOSEE:

, a                               

By:

Name:

Title:

474

EXHIBIT C-1

RENT ROLL FOR SHOPPING CENTER PROPERTY

RENT ROLL FOR SHOPPING CENTER PROPERTY

LEASE ENTITY / TENANT NAME		MONTHLY RENT	ANNUAL RENT	START	END	SIZE - S.F.	RENT/ S.F.	SECURITY DEPOSIT
*Aj PET DISTRIBUTORS		$8,002.13	$96,025.56	4/1/2005	3/31/2008	2,480	$38.72
*Tenant is M-to-M
ATLANTIC RESTAURANT (BURGER KING)		$10,416.67	$125,000.04	5/1/2006	4/30/2011	2,996	$41.72	$5,000.00
	STEP	$12,083.33	$144,999.96	5/1/2011	4/30/2016	2,996	$48.40
	STEP	$14,166.67	$170,000.04	5/1/2016	4/30/2020	2,996	$56.74
	STEP	$15,833.33	$189,999.96	5/1/2020	4/30/2024	2,996	$63.42
	STEP	$17,083.33	$204,999.96	5/1/2024	4/30/2026	2,996	$68.42
	% Rent: 6% over 5% break point
COACH NAILS & SKIN CARE		$1,975.00	$23,700.00	1 1/1/2006	10/31/2011	600	$39.50	$5,000.00
EYEGLASS SERVICE INDUSTRY		$5,370.56	$64,446.72	1 1/1/2008	10/31/2011	1,323	$48.71	$10,425.38
	STEP	$5,639.09	$67,669.08	11/1/2011	10/31/2014	1,323	$51.15
	STEP	$5,751.87	$69,022.44	11/1/2014	10/31/2015	1,323	$52.17
	OPTION	$5,866.91	$70,402.92	11/1/2015	10/31/2016	1,323	$53.21
	STEP	$5,984.25	$71,811.00	11/1/2016	10/31/2017	1,323	$54.28
	STEP	$6,163.78	$73,965.36	11/1/2017	10/31/2018	1,323	$55.91
	STEP	$6,348.69	$76,184.28	11/1/2018	10/31/2019	1,323	$57.58
	STEP	$6,539.15	$78,469.80	11/1/2019	10/31/2020	1,323	$59.31
FASHION BUG		$16,893.33	$202,720.00	11/01/2010	10/31/2015	5,068	$40.00
	% rent of 4% over $5,068,000
GAMESTOP		$5,685.63	$68,227.56	8/1/2008	7/31/2013	2,481	$27.50
OZONE PARK WINES & LIQUORS		$4,198.06	$50,376.72	11/1/2007	10/31/2012	1,204	$41.84	$7,800.00
	STEP	$4,827.77	$57,933.24	11/1/2012	10/31/2017	1,204	$48.12

475

Rent and CAM Prorations

		Rent	Cam	Tax			Total	Nov 1 - 3	Nov 4 - 30		Open Bal as of Nov.3
072-6626	All Pet Distributors, Inc.	$8,002.13	$423.75	$1,299.06			$9,724.94	$972.49	$8,752.45	A	$9,724.94
	Atlantic Restaurant Assoc., Inc.	$10,416.67	$511.29	$1,567.12			$12,495.08	$1,249.51	$11,245.57	B	$13,024.49
	Coach Nails & Skin Care, Inc.	$1,975.00	$182.57	$313.42			$2,470.99	$247.10	$2,223.89	A	$2,470.99
	Eyeglass Service Industries	$5,370.56	$226.01	$692.83			$6,289.40	$628.94	$5,660.46	A	$6,289.40
	Fashion Bug of Ozone Park, Inc.	$16,893.33	$847.55	$2,598.12			$20,339.00	$2,033.90	$18,305.10	A	$20,339.00
	Gamestop, Inc.	$5,685.63	$423.77	$1,299.06			$7,408.46	$740.85	$6,667.61	C	$46,586.10
	Ozone Park Wines & Liquors	$4,198.06	$205.81	$630.97			$5,034.84	$503.48	$4,531.36	D	$10,273.52
A	Representing Nov. 2010 rent, cam and tax.				C	Nov. 2010 rent, cam & tax			$7,408.46
						2009 Cam Adj.			$419.03
B	Nov. 2010 rent, cam & tax	$12,495.08				Rent arrears from June-Oct. 2010			$38,758.61
	2009 Cam Adj.	$505.35							$46,586.10
	Oct. 2010 cam	$24.06
		$13,024.49			D	Oct. 2010 rent, cam & tax			$5,034.84
						Nov. 2010 rent, cam & tax			$5,034.84
						2009 Cam Adj.			$203.84
									$10,273.52

476

EXHIBIT C-2

GROUND LEASES

1.That certain Lease between Commonwealth Trust Co. (Lessor) and 909 Group, L.P. (Lessee) dated as of September 8, 1977, as amended or otherwise modified by the documents listed below:

(a)Amendment of Lease dated February 28, 1979

(b)Amendment of Lease dated December 11, 1979

(c)Assignment of Lease date November 29, 1994

(d)Assignment of Lease dated June 11, 1980

(e)Renewal Notice [9/8/97 — 9/7/02] dated March 3, 1997

(f)Renewal Notice [9/8/02 — 9/7/07] dated January 31, 2002

(g)Notice [Transfer of Ownership] dated August 9, 2007

(h)Notice [Transfer of Ownership] dated February 6, 2009

(i)Assignment and Assumption of Lease dated September 3, 2009

2.That certain Lease between 7 Horizon Corp. (Landlord) and Pathmark Stores, Inc. formerly known as Supermarkets General Corporation (Tenant) dated as of August 7, 1987, as amended or otherwise modified by the documents listed below:

(a)Declaration of Easement dated August 7, 1987

(b)Letter Agreement dated March 28, 1990

(c)Assignment of Lessor’s Interest in Lease date March 29, 1990

(e)Renewal Notice [6/1/8 — 5/31/13] dated July 25, 2007

(f)First Amendment to Lease dated September 10, 2010

477

EXHIBIT C-3

SURVEYS

The Great Atlantic & Pacific Tea Company, Inc.

Sixty Ninth Street

Upper Darby Township, Delaware County

Commonwealth of Pennsylvania

Dated: 9/1/10, Revised 10/4/10

by Control Point Associates, Inc.

The Great Atlantic & Pacific Tea Company, Inc.

Gloucester Pike & White Horse Pike

Borough of Lawnside

Camden County, State of New Jersey

Dated: 11/20/07, Revised 10/4/10

by Control Point Associates, Inc.

The Great Atlantic & Pacific Tea Company, Inc.

4055 Merrick Road

Seaford, Town of Hempstead, Nassau County

State of New York

Dated: 9/8/10, Revised 10/5/10

by Control Point Associates, Inc.

The Great Atlantic & Pacific Tea Company, Inc.

1764 Grand Avenue

Lots 580, 592, 593, 594, 595, 597, 598 & 600

Baldwin, Town of Hempstead, Nassau County

State of New York

Dated: 9/8/10, Revised 10/29/10

by Control Point Associates, Inc.

The Great Atlantic & Pacific Tea Company, Inc.

92-10 Atlantic Avenue

Ozone Park, Borough and County of Queens

City and State of New York

Dated: 12/6/07, Revised 11/4/2010

by Control Point Associates, Inc.

The Great Atlantic & Pacific Tea Company, Inc.

3901 Lancaster Pike

Christiana Hundred Township, New Castle County

State of Delaware

Dated: 9/1/10; Revised 10/7/10

by Control Point Associates, Inc.

478

EXHIBIT C-4

TITLE CONDITIONS

I.Standard Requirements

1Title Affidavits in a form reasonably acceptable to Title Company

2Gap Indemnity

3Updated rent rolls, as required

II.Authority Requirements

1For the entities on the attached Schedule A or their successor entities, as the case may be, the following authority documents:

a.a copy of the Certificate of Formation (or equivalent) from the jurisdiction of formation;

b.a current Certificate of Good Standing from the jurisdiction of formation;

c.if state of formation is different than where the property is located, a current Certificate of Registration (or equivalent) from the state where the property is located, evidencing authority to conduct business in that jurisdiction (foreign entity only);

d.the Operating Agreement (for a Limited Liability Company (“LLC”)) or Partnership Agreement (for a Limited Partnership (“LP”)) or Articles of Organization (for a Corporation), and any and all amendments thereto;

e.a Resolution and Incumbency Certificate authorizing the transaction which is the subject of the applicable commitment and identifying and directing the necessary persons to execute and deliver the documents necessary to consummate the transaction.

2For the entities on the attached Schedule B, the following authority documents:

a.a copy of the Certificate of Formation (or equivalent) from the jurisdiction of formation;

b.a current Certificate of Good Standing from the jurisdiction of formation;

c.the Operating Agreement, Partnership Agreement or Articles of Organization, as applicable, and any and all amendments thereto;

479

d.Resolution and Incumbency Certificate authorizing the transaction which is the subject of the applicable commitment and identifying and directing the necessary persons to make, execute and deliver the documents necessary to consummate the transaction

III.           Discharge of Existing Financing — Funds and/or documentation sufficient to obtain discharges for the financing documents listed on Schedule C attached hereto.

IV.           Termination of Affiliate Ground Leases — Termination of the following Pathmark/A&P affiliate ground leases, as well as documentation sufficient to terminate any recorded notice or memorandum of lease related thereto:

1421 South 69th Blvd, Upper Darby, PA — Lease between Upper Darby Stuart, Inc., a Delaware corporation and Pathmark Stores, Inc., a Delaware corporation, and Memorandum of Lease recorded in Volume 1787 Page 71

2130 White Horse Pike, Lawnside, NJ — Lease between Plainbridge, Inc. and Pathmark Stores, Inc. recorded in Deed Book 5114, Page 746.

34055 Merrick Road, Seaford, NY — Lease between Delaware Stuart, Inc., as Lessor and Supermarkets General Corporation, as Lessee, dated as of June 1, 1968, as evidenced by a memorandum of lease between same parties dated June 1, 1968, recorded June 14, 1968 in Liber 7838, cp 109.

41764 Grand Avenue, Baldwin, NY — Lease between Delaware Stuart, Inc., as Landlord and Supermarkets General Corporation as Tenant dated as of October 1, 1966, as evidenced by a memorandum of lease dated October 13, 1966 between the same parties recorded October 19, 1966 in Liber 7590, cp 56.

592-10 Atlantic Avenue, Queens, NY — Unrecorded Lease between Plainbridge LLC, as successor by conversion from Plainbridge Inc., as Landlord and Pathmark Stores, Inc., as Tenant, as referred to in a mortgage by Plainbridge, LLC to Bank of America, N.A. as collateral agent for the secured parties, dated 12/27/2007 recorded 05/14/2008 as CRFN 2008000193420.

63901 Lancaster Pike, Wilmington, DE — Lease between Lancaster Pike Stuart, Inc., as Landlord, and Pathmark Stores, Inc., as Tenant, as evidenced by Memorandum of Lease dated September 21, 1998 and recorded in Book 2528, Page 158.

V.            Property- and State-Specific Requirements

1421 South 69th Blvd, Upper Darby, PA

a.Deed of Correction from Upper Darby Stuart, Inc. to Upper Darby Stuart, LLC as referenced as Exception No. 22 in Schedule B, Section 1.

2130 White Horse Pike, Lawnside, NJ — N/A

480

34055 Merrick Road, Seaford, NY

a.Statement in an affidavit sufficient to remove Exceptions No. 9 and 22 of Schedule B.

41764 Grand Avenue, Baldwin, NY

a.Statement in an affidavit sufficient to remove Exception No. 8 from Schedule B.

b.Proof of payment of Franchise Tax and/or license fees on Plainbridge, Inc. from date of incorporation to date of closing.

592-10 Atlantic Avenue, Queens, NY

a.Pathmark Stores, Inc., (formerly known as Supermarkets General Corporation) must join in the conveyance documents in order to remove Exception No. 14 from Schedule B.

b.Ground Lease estoppel from 7 Horizon Corp. (Exception No. 19, Schedule B)

c.Indemnity Agreement sufficient to remove Exception No. 24 from Schedule B

d.Statement in an affidavit sufficient to remove Exception No. 34 from Schedule B

63901 Lancaster Pike, Wilmington, DE

a.Statements in an affidavit sufficient to remove the following exceptions:

Judgment between Luraleen Lutz (Plaintiff) vs. Lancaster Pike Stuart, LLC and Pathmark Stores, Inc. recorded October 30, 2007 in Judgment Record S, Volume 24, Page 171

Judgment between James Hackett (Plaintiff) vs. Pathmark Stores, Inc. recorded December 8, 2007 in Judgment Record H, Volume 24, Page 406

481

Schedule A to Exhibit C-4

Upper Darby, PA	·Upper Darby Stuart, Inc. — (Fee “A”) ·Upper Darby Stuart, LLC — (Fee “B”)
Lawnside, NJ	·Plainbridge, LLC — Fee
Seaford, NY	·Plainbridge, LLC (Successor to Plainbridge, Inc.)
Baldwin, NY	·Plainbridge, LLC (Successor to Plainbridge, Inc.)
Ozone Park	·Plainbridge, LLC — Parcels 1 & 2 (Fee) ·Pathmark Stores, Inc. — Lease, Parcel 3
Wilmington, DE	·Lancaster Pike Stuart, LLC (Fee) ·Supermarkets General Corporation n/k/a/ Pathmark Stores, Inc. (Leasehold)

1

Schedule B to Exhibit C-4

Any management or upper tier entities for the parties listed on Schedule A, as required by the Title Company.

2

Schedule C to Exhibit C-4

A.421 South 69th Blvd, Upper Darby, PA

1.Fee Mortgage dated 1.26.1989, recorded 2.2.1989 in Vol. 643/Page 1995 which also covers other property

Mortgagor:Supermarkets General Corporation

Mortgagee:The Prudential Insurance Company of America

Amount:$1,710,000

2.Fee Mortgage dated 1.26.1989, recorded 2.2.1989 in Vol. 643/Page 2069

Mortgagor:Supermarkets General Corporation

Mortgagee:The Prudential Insurance Company of America

Amount:$41,268,000 Collateral Assignment of Rents and Leases recorded 2.2.1989 in Vol. 643/Page 2144

3.Leasehold Mortgage dated 9/19/2000, recorded 11.17.2000 in Vol. 2091/1575

Mortgagor:Pathmark Stores, Inc.

Mortgagee:The Chase Manhattan Bank

Amount:$425,000

First Amendment and Spreader Agreement recorded 10.27.2004, Vol. 3328/Page 722

4.Fee Mortgage dated 12.3.2007, recorded 1.22.08 in Vol. 4282/Page 2132

Mortgagor:Upper Darby Stuart, LLC

Mortgagee:Bank of America

Amount:$775,000,000
Also covers other property

5.Leasehold Mortgage dated 12.3.07, recorded 1.22.08, Vol. 4282/223 1

Mortgagor:Pathmark Stores, Inc

Mortgagee:Bank of America Amount: $775,000,000
Also covers other property

6.Leasehold Mortgage dated 7.3 1.09, recorded 8.10.09 in Vol. 4604/Page 54

Mortgagor:Pathmark Stores, Inc.

Mortgagee:Wilmington Trust Company

Amount:$260,000,000
Also covers other property

7.Fee Mortgage dated 7.3 1.09, recorded 8.10.09 in Vol. 4604/Page 92

Mortgagor:Upper Darby Stuart, LLC

Mortgagee:Wilmington Trust Company

Amount:$260,000,000
Also covers other property

3

B.130 White Horse Pike, Lawnside, NJ

1.Mortgage dated 12.27.07 recorded 1.15.08 in Book 8747/Page 1553

Mortgagor:Plainbridge, LLC

Mortgagee:Bank of America

Amount:775,000,000

2.Mortgage dated 12.27.07 recorded 1.15.08 in Book 8747/Page 1592

Mortgagor:Pathmark Stores, Inc.

Mortgagee:Bank of America

Amount:775,000,000

SNDA recorded October 20, 2008, in Book 8923/Page 587

3.Mortgage dated 8.4.09 recorded 8.17.09 in Book 9084/Page 278

Mortgagor:The Great Atlantic & Pacific Tea Company, Inc., Plainbridge, LLC and Bergen Street Pathmark, Inc.

Mortgagee:Wilmington Trust Company

Amount:260,000,000

Assignment of Leases and Rents recorded 8.17.09 in 9084/Page 462

C.4055 Merrick Road, Seaford, NY

1.Mortgage and Security Agreement held by The Chase Manhattan Bank, As Collateral Agent for the Administrative Agent, the lenders and the Issuing Bank from Plainbridge, Inc., dated July 9, 1997, recorded July 29, 1998 in the Nassau County Register’s Office in Liber 18054, MP 752.

2.Mortgage and Security Agreement held by The Chase Manhattan Bank, As Collateral Agent for the Administrative Agent, the lenders and the Issuing Bank, from Plainbridge, Inc., dated September 19, 2000, recorded October 20, 2000 in the Nassau County Register’s Office in Liber 20595, MP 50.

3.Mortgage and Security Agreement held by The Chase Manhattan Bank, dated September 19, 2000, from Supermarkets Oil Company, Inc., recorded November 2, 2000 in the Nassau County Register’s Office in Liber 20602, MP 1.

4.Mortgage and Security Agreement held by The Chase Manhattan Bank, dated September 19, 2000, from Pathmark Stores, Inc., recorded November 3, 2000 in the Nassau County Register’s Office in Liber 20604, MP 52.

5.Mortgage and Security Agreement held by Fleet Retail Group, Inc., from Pathmark Stores Inc., Plainbridge LLC, Bridge Stuart, Inc. and Supermarkets Oil Company, Inc. dated October 1, 2004, recorded October 27, 2004 in the Nassau County Register’s Office in Liber 27797, MP 501.

6.Mortgage and Security Agreement held by Bank of America, NA, as Collateral Agent, from Pathmark Stores Inc., Plainbridge LLC, Bridge Stuart, Inc. and Shopwell

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Inc. dated December 3, 2007, recorded May 2, 2007 in the Nassau County Register’s Office in Liber 32940, MP 1.

D.1764 Grand Avenue, Baldwin, NY

1.Mortgage and Security Agreement from Plainbridge, Inc to The Chase Manhattan Bank, as Collateral Agent, dated July 9, 1997, recorded in Liber 18074, MP 752; Assignment to Fleet Retail Group, Inc as Collateral Agent, dated October 2, 2004, recorded in Liber 27797, MP 440. (Original Amount: A= $16,275,000).

2.Mortgage Assignment of Leases and Rents, Security Agreement and Financing Statement from Plainbridge, Inc to The Chase Manhattan Bank, as Collateral Agent, dated September 19, 2000, recorded in Liber 20595, MP 50; Assignment to Fleet Retail Group, Inc as Collateral Agent, dated October 1, 2004, recorded in Liber 27797, MP 447; Assignment Bank of America, as Collateral Agent, dated May 2, 2008, recorded in Liber 32939, MP 978; (Original Amount: B= $425,000,000).

3.Spreader Agreement between Pathmark Stores, Inc and Fleet Retail Group, Inc, dated October 1, 2004, recorded in Liber 277976, MP 454; “Gap” Agreement by Pathmark Stores, Inc, Plainbridge LLC, Bridge Stuart Inc., Supermarkets Oil Company Inc., and Fleet Retail Group, Inc., dated October 1, 2004, recorded in Liber 22797, MP 501; (Original Amount: $84,277,805.02) Additional Agreement by Pathmark Stores, Inc, Plainbridge LLC, Bridge Stuart Inc., Supermarkets Oil Company Inc., and Fleet Retail Group, Inc., dated October 1, 2004, recorded in Liber 22798, MP 1; (Consolidates Mortgages recorded in Liber 20595 MP 5 and Liber 27797 MP 501 into (Amended Amount: $130,000,000).

4.Mortgage from Pathmark Stores, Inc., Plainbridge, Inc., Bridge Stuart Inc., and Shopwell, Inc to Bank of America, N. A., as Collateral Agent, dated December 3, 2007, recorded in Liber 32940, MP 1; (Original Amount: D= $170,000,000);Mortgage Assumption, Consolidation, Modification and Spreader Agreement between Bank of America, N. A., as Collateral Agent, and Pathmark Stores, Inc., Plainbridge, Inc., Bridge Stuart Inc., and Shopwell, Inc, dated December 3, 2007, recorded in Liber 32940, MP 125; (Consolidates Mortgages “A”, “B”, “C” and “D” into one lien for $545,000,000 and spreads to other properties).

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E.92-10 Atlantic Avenue, Queens, NY

Mortgage “A” Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement dated as of 09/19/2000 by Plainbridge, Inc. to The Chase Manhattan Bank, as Collateral Agent, in the sum of $425,000,000.00, recorded 10/18/2000 in Reel 5700 Page 1096 (covers premises and more)(Tax Paid: Exempt). The maximum principal amount which is or under any contingency may be secured by the Mortgage is $425,000,000.00, plus interest thereon and all additional interest and late payment and prepayment charges in respect thereof, plus all amounts expended by Mortgagee following a default thereunder in respect of insurance premiums and real estate taxes, and all legal costs or expenses of collection of the note (s) secured thereby or of the defense or prosecution of the rights and lien created thereby; The mortgage secures the outstanding principal balance of $45,722,194.79, as of the date hereof, and $0 remains to be advanced thereunder. (Covers premises and more)

Assignment of Mortgage by JPMorgan Chase Bank f/k/a The Chase Manhattan Bank, as Collateral Agent, to Fleet Retail Group, Inc. as Collateral Agent dated as of 10/01/2004 recorded 11/04/2004 as CRFN 2004000680726. (Assigns Mortgage “A”) (Covers premises and more)

Mortgage Spreader Agreement by and between Fleet Retail Group, Inc. as Collateral Agent and Plainbridge LLC f/k/a Plainbridge, Inc. dated 10/01/2004 recorded 11/04/2004 as CRFN 2004000680727, spreads lien Mortgage “A” to additional property.

Mortgage “B” Mortgage, Assignment of Leases and Rents and Security Agreement by Pathmark Stores, Inc. to The Chase Manhattan Bank, as Collateral Agent, in the sum of $425,000,000.00 dated 09/19/2000, recorded 11/17/2000 in Reel 5723 Page 2391 (Mortgage Tax Paid: Exempt from mortgage tax.) (Covers premises and more)

Assignment of Mortgage by JPMorgan Chase Bank f/k/a The Chase Manhattan Bank, as Collateral Agent to Fleet Retail Group, Inc., as Collateral Agent, as of dated 10/01/2004 and recorded 11/04/2004, as CRFN 2004000680728. (Assigns Mortgage “B”)

Mortgage Spreader Agreement by and between Fleet Retail Group, Inc., as Collateral Agent and Pathmark Stores, Inc., dated as of 10/01/2004 recorded 11/04/2004 as CRFN 2004000680729. (Spread Mortgages “A” and “B” to cover additional premises)

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Mortgage “C” Gap Mortgage by Pathmark Stores, Inc. to Fleet Retail Group, Inc. as Collateral Agent, dated 10/01/2004 in the sum of $84,277,805.21, recorded 11/04/2004 as CRFN 2004000680731.(Mortgage Tax Paid: $1,881,459.71, which is the total amount of mortgage tax paid for all counties in which said Gap Mortgage was recorded; Nassau County collected the total mortgage tax distributed the mortgage tax among the counties; plus an additional mortgage tax of $13,007.51 was paid to the City of Yonkers)

Mortgage Consolidation and Modification Agreement by and between Pathmark Stores, Inc., Plainbridge LLC, f/k/a Plainbridge, Inc., Bridge Stuart Inc. and Supermarkets Oil Company, Inc. and Fleet Retail Group, Inc., as Collateral Agent dated as of 10/01/2004 recorded 11/04/2004 as CRFN 2004000680732, which by its terms consolidates Mortgages “A”, “B” and “C” to form a single lien of $130,000,000.00.

Note: Parcel 2 released from this mortgage by Fleet Retail Group, LLC f/k/a Fleet Retail Group, Inc. as Collateral Agent, dated 01/25/2008 recorded 05/14/2008 as CRFN 2008000193521.

Assignment of Mortgage by Fleet Retail Group, LLC, (f/k/a Fleet Retail Group, Inc.), as Collateral Agent to Bank of America, N.A., As Collateral Agent, dated as of 12/03/2007 record as CRFN 2008000193517. (Assigns Mortgages “A”, “B” and “C” as consolidated, with an outstanding principal balance of $130,000,0000.00) Note: Additional Mortgage Tax $1,334,029.71 paid by Pathmark Stores, Inc., recorded 11/21/2008 as CRFN 200800451490. (copy attached)

Mortgage “D”

Mortgage Assumption, Consolidation Modification and Spreader Agreement by and between Bank of America, N.A., as Collateral Agent and Pathmark Stores, Inc., Plainbridge LLC (as successors by conversion from Plainbridge, Inc.) Bridge Stuart, Inc. and Shopwell, Inc., dated as of 12/03/2007 recorded 05/14/2008 as CRFN 2008000193519 consolidates mortgages covering numerous properties and spreads same to cover numerous other properties and to secure a maximum amount of $130,000,000.00.

Note: Additional mortgage tax $1,334,029.71 by Pathmark Stores, Inc. on 11/21/2008 as CRFN 2008000451490.

Mortgage “E”

Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement, dated as of 12/27/2007 to be effective as of 12/03/2007 by Plainbridge LLC. (as successor by conversion from Plainbridge, Inc.) to Bank of America, N.A. as Collateral Agent for the benefit of the Secured Parties in the sum of $28,300,000.00 recorded 05/14/2008 as CRFN 2008000193520 Tax Paid: $792,400.00 (Covers Parcel 2)

F.3901 Lancaster Pike, Wilmington, DE

1. Mortgage and Security Agreement from Lancaster Pike Stuart, LLC to Bank of America, N.A., dated December 27, 2007 and recorded January 14, 2008 in Document No. 20080114-0003002.

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2.Mortgage and Security Agreement from Lancaster Pike Stuart, LLC to Wilmington Trust Company, dated August 4, 2009 and recorded August 7, 2009 in Document No. 20090807-0052487.

3.Leasehold Mortgage and Security Agreement from Pathmark Stores, Inc. to Wilmington Trust Company, dated August 4, 2009 and recorded August 7, 2009 in Document No. 20090807-0052488.

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EXHIBIT C-5

PARTIAL LIST OF PERMITTED ENCUMBRANCES

A.421 South 69th Blvd, Upper Darby, PA

Exception No. 5:Real estate taxes for the current and prior tax years which are hereafter assessed and are not yet due and payable.

Exception No. 6:Public and private rights in and to that portion of the premises lying in the bed of Heather Road and Marshall Road.

Exception No. 7:Easement and proportionate part of expense of maintenance of driveway on Northwest and alley on North (Premises A).

B.130 White Horse Pike, Lawnside, NJ

Exception No. 6:Payment of all taxes, water, sewer, rents and assessments, if any, to and including the current installment of 2010, not yet due and payable.

Exception No. 7:Any unpaid municipal property taxes for the year 2010, not yet due and payable. NOTE: Taxes are paid to and including the third quarter of 2010.

Exception No. 8:Possible additional taxes and assessments assessed or levied under R.S.54:4-653.1 et seq, not yet due and payable.

Exception No. 15:Subject to restrictions as contained in Deed Book 2881/Page 207.

Exception No. 16:Subject to terms of party wall agreement as contained in Deed Book 3 117/1150.

Exception No. 17:Grants and easements in Deed Book 3138/Page 565 to Public Service Electric and Gas Company.

Exception No. 18:Subject to terms and provisions of agreements as contained in Deed Book 3164/1194, Modification of Cross-Easement Agreement in Deed Book 3791/418, and Amendment of Cross-Easement Agreement in Deed Book 5113/168 made by Plainbridge, Inc.

Exception No. 19:Subject to Real Property Waiver as contained in Deed Book 4242/Page 574.

Exception No. 21:Subject to temporary access and construction easement as contained in Deed Book 5114/Page 771

C.4055 Merrick Road, Seaford, NY

Exception No. 1:Taxes, tax liens, tax sales, water rates, sewer rents and assessments not yet due and payable.

Exception No. 5A.Reservations for Easements contained in a deed by Avis A. Bond and Ruth Pine to Shop-Rite of Watchung, Inc., dated 6/1/67 recorded 6/6/67 in Liber 7676 cp 191.

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Exception No. 5B. Agreement for Non-Exclusive easement of ingress and egress by and between Shop-Rite of Watchung, Inc. and Avis A. Bond and Ruth Pine dated as of 10/09/67 recorded 1/26/68 in Liber 7785 cp 277.

23.The tax search reveals that there are exemptions from real estate taxes. The exemptions will terminate upon a conveyance of the property and taxes restored to the date of such conveyance.

D.1764 Grand Avenue, Baldwin, NY

Exception No. 1:Taxes, tax liens, tax sales, water rates, sewer rents and assessments not yet due and payable.

24.Premises are subject to a tax lot exemption which may terminate upon a transfer of title and taxes readjusted to the date of such transfer.

E.92-10 Atlantic Avenue, Queens, NY

Exception No 1:Taxes, tax liens, tax sales, water rates, sewer rents and assessments, not yet due and payable.

Exception No. 5:Road Closing Waiver and Easement Agreement dated 8/2/84 between Supermarkets General Corporation and the City of New York recorded 10/16/85 in Reel 1942 cp 943.

Exception No. 6:Reservation of a permanent perpetual easement contained in a deed between The City of New York and Supermarkets General Corporation dated 1/11/85 recorded 3/25/86 in Reel 2051, Page 235.

Exception No. 7:Declaration of Easements by and between Supermarkets General Corporation and 7 Horizon Corp., dated as of 8/7/87 recorded 11/17/87 in Reel 2494, Page 1380.

Exception No. 8:Grant of Easement by and between Supermarkets General Corporation and The Consolidated Edison Company dated 8/9/84 recorded 1/13/87 in Reel 2272, Page 2056.

Exception No. 9:Declaration of Easement by Plainbridge, Inc., dated as of 1/11/96 recorded 2/16/96 in Reel 4278, Page 358.

Exception No. 11:Parking, Ingress and Egress Easement dated as of 11/26/08 by Plainbridge, Inc., converted into Plainbridge LLC on 4/18/01 and Clocknorse Realty LLC recorded 10/27/09 as CRFN 2009000351215.

Exception No. 12:Grant of Easement by Supermarkets General Corporation to the Brooklyn Union Gas Company dated 8/9/84 recorded 3/20/86 in Liber 2046 cp 358.

Exception No. 13Terms and Condition of an unrecorded lease dated 8/12/85 and between Supermarkets General Corporation and S.L.G. Burger as amended by the unrecorded First Amendment of Lease dated as of 1/5/99 by and between Pathmark Stores, Inc., (formerly known as Supermarkets General Corporation and Atlantic Restaurant Associates, Inc., (successor by merger to S.L.G. Burger, Inc., as evidenced by a Memorandum of Lease between the same parties dated as of 1/21/99 recorded 3/1/99 in Reel 5130 Page 2052 as amended by an

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unrecorded Amendment of Lease between the same parties dated as of 5/1/06 as evidenced by a Modification of Memorandum of Lease dated as of 8/28/07, between the same parties, recorded 10/1/07 as CRFN 2007000499568.

Exception No. 36:UCC Financing Statement with 7 Horizon Corp, as Debtor, New York Community Bank, as Secured Party filed as No. 02Q00781 on 1/25/02 continued by CRFN200600063 1285 on 11/14/06. NOTE: This affects the fee interest in Parcel 3 only.

Exception No. 37:Terms and conditions of an unrecorded Lease dated as of August 8, 1987 between 7 Horizon Corp., as Landlord and Supermarkets General Corporation, as Tenant as evidenced by a Memorandum of Lease between the same parties dated as of August 7, 1987 recorded November 17, 1987 in Reel 2949 Page 1373, as amended by an unrecorded First Amendment to Lease dated as of September 10, 2010 by and between 7 Horizon Corp., Landlord and Pathmark Stores, Inc., Tenant, as affected by an Assignment and Assumption of Lease by and between 7 Horizon Corp., as Landlord, Pathmark Stores, Inc., as Assignor and WE APP WILMINGT ON LLC, as Assignee dated            and recorded                                                in Reel       , Page       . NOTE: Title Insurance Company to certify that the insured has succeeded to the interests of Tenant under such lease and has a valid leasehold interest in the premises described therein.

Exception No. 38:The following mortgages affect the fee interest to Parcel 3:

1.Mortgage by 7 Horizon Corp. to Metlife Capital Credit Corporation in the sum of $700,000,000.00 dated as of 3/29/90, recorded 4/20/90 in reel 2984, Page 1271.

Assigned by MetLife Capital Corporation (successor by merger to Metlife Capital Credit Corporation) to Greenpoint Bank dated 11/26/96, recorded 3/5/97 in Reel 4537 Page 808.

2.Mortgage by 7 Horizon Corp. to Greenpoint Bank in the sum of $6,697.25 dated 11/27/96, recorded 3/5/97 in Reel 4537, Page 811.

Subordination Nondisturbance and Attornment Agreement dated as of 10/09/96 among Greenpoint Bank, 7 Horizon Corp and Pathmark Stores, Inc. recorded 11/5/97 subordinates lease, a memo of which was recorded in Reel 2494, cp 1373 to consolidated mortgages set forth in 1 and 2.

Assignment of Mortgage by Greenpoint Bank, successor by name change from The Greenpoint Savings Bank to New York Community Bank dated 10/02/0 1 recorded 2/12/02 assigns Mortgages set forth in 1 and 2.

3.Mortgage by 7 Horizon Corp. to New York Community Bank in the sum of $91,761.54 dated 11/1/01, recorded 2/12/02 in Reel 6207, Page 1336.

Subordination Nondisturbance and Attornment Agreement dated as of 11/01/01 among New York Community Bank, 7 Horizon Corp and Pathmark Stores, Inc. recorded 2/12/02 in Reel 6207, cp 1362.

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Consolidation Modification and Extension Agreement between New York Community Bank and 7 Horizon Park dated 11/1/01, recorded 2/12/02 in Reel 6207, Page 1346 consolidates Mortgages set forth in 1, 2, and 3.

Mortgage Modification Agreement between 7 Horizon Corp. and New York Community Bank effective as of 12/22/08, recorded 11/13/08 as CRFN 200800044006.

F.3901 Lancaster Pike, Wilmington, DE

Subject to sanitary sewer assessment and rent, not yet due and payable.

Right of Way Agreements recorded in Deed Record M, Vol. 98, Page 39, Deed Record K, Vol. 113, Page 270 and Deed Record W, Vol. 122, Page 75

The following mortgage affects the fee interest in Premises B only:

MORTGAGE: $5,175,000.00 from 3801 Wilmington Corporation to DCFS USA LLC, dated 9/1/09 and recorded 9/8/09 in Document No. 20090908-0058597.

LEASE SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT as set forth in Document No. 20090908-0058599.

ASSIGNMENT OF LEASES AND RENTS as set forth in Document No. 20090908-0058598.

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EXHIBIT D-1

FORM OF NEW JERSEY DEED

[see attached]

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DEED - BARGAIN AND SALE (COVENANT AS TO GRANTOR’S ACTS)

Plain Language

Prepared by:
	Name:

DEED

This Deed is made as of the              day of                    , 20      ,

BETWEEN ,

whose address is

referred to as the Grantor,

AND

whose address is *

referred to as the Grantee. The words “Grantor” and “Grantee” shall mean all Grantors and all Grantees listed above.

Transfer of Ownership. The Grantor grants and conveys (transfers ownership of) the property described below to the Grantee. This transfer is made for                                                              the sum of                                  &nbs p;     DOLLARS. The Grantor acknowledges receipt of this money.

Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality of                                                               Block No.                                       *                                            Lot No.                                 Account No.                                

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[ ] No property tax identification number is available on the date of this deed. (Check box if applicable).

Property. The property consists of the land and all the buildings and structures on the land in the County of                                                            and State of New Jersey. The legal description is:

See Schedule A-Description attached.

Being the same premises conveyed to Grantor by deed from                                             dated                                           and recorded office of the Clerk/Register of                                                 &n bsp;         County in Deed Book                   , Page       .

Promises by Grantor. The Grantor promises that the Grantor has done no act to encumber the property. This promise is called a “covenant as to grantor’s acts” (N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed anyone else to obtain any legal rights which affect the property (such as by making a mortgage or allowing a judgment to be entered against the Grantor).

Signatures. The Grantor signs this Deed as of the date at the top of the first page.

Witnessed by:
	*	*

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STATE OF NEW JERSEY, COUNTY OF MIDDLESEX SS.:

I CERTIFY that on                                                , 20      ,                                                          personally came before me and this person acknowledged under oath, to my satisfaction, that:

(a)this person is the                                                     of                                            & nbsp;        , the                             named in this Deed;

(b)this Deed was signed and delivered by the said person on behalf of said                              as its                                  voluntary act duly authorized by                      &nbs p;                        ; and

(c)                the full and actual consideration paid or to be paid for the transfer of title is $                               . (Such consideration is defined in N.J.S.A. 46:15-5.).

NOTARY PUBLIC

My Commission Expires:

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EXHIBIT D-2

FORM OF NEW YORK DEED

[see attached]

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BARGAIN AND SALE DEED

With Covenant Against Grantor’s Acts

THIS INDENTURE, made the        of                                      , 2010

BETWEEN

                     , a                                              existing                                           under the laws of GRANTOR, having an address of                               & nbsp;              ,

AND

                                                   a                                                   existing under the laws of                                            &nbs p;        , GRANTEE, having an address of                                                ,

WITNESSETH, THAT GRANTOR, in consideration of $                                       dollars, lawful money of the United States, paid by Grantee,

DOES HEREBY GRANT AND RELEASE UNTO GRANTEE, its successors and assigns forever,

ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, with the buildings and improvements thereon erected, more particularly described on Exhibit “A” annexed to this indenture,

BEING THE SAME PREMISES CONVEYED TO GRANTOR by deed dated                                 recorded                                 in [***] [***],

TOGETHER WITH all right, title and interest, if any, of Grantor of, in and to any streets and roads abutting said premises to the center lines thereof,

TOGETHER WITH the appurtenances and all the estate and rights of Grantor in and to said premises,

SUBJECT TO the encumbrances and reservations described on Exhibit “B” annexed to this indenture,

TO HAVE AND TO HOLD the said premises herein granted unto Grantee, its successors and assigns forever.

AND GRANTOR COVENANTS that it has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid.

AND GRANTOR COVENANTS that it will receive the consideration for such conveyance and will hold the right to receive such consideration as a trust fund to be applied first

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for the purpose of paying the cost of the improvement and will apply the same first to the payment of cost of the improvement before using any part of the total of the same for any other purpose.

IN WITNESS WHEREOF, Grantor has caused these presents to be signed by its duly authorized officer the day and year first above written.

GRANTOR:

By:

Name:

Title:

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SIGNATORY ACKNOWLEDGEMENT:

STATE OF NEW YORK	}
COUNTY OF	}

On the                day of                                    , 2010, before me, the undersigned, personally appeared                                       personally known to me or proved to me to on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Notary Public
	Section: Block:
	Lot:
	County: Address:
	RETURN BY MAIL TO:
	Daniel A. Taylor
	DLA Piper LLP (US)
	33 Arch Street, 26th Floor Boston, MA 02110-1447

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EXHIBIT “A”

21

EXHIBIT “B”

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EXHIBIT D-3

FORM OF PENNSYLVANIA DEED

[see attached]

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PREPARED BY:

RECORD & RETURN TO:

CHICAGO TITLE INSURANCE COMPANY

1515 Market Street, Suite #1 325

Philadelphia, PA 19102

Parcel No.:

NAME OF DOCUMENT

(INSERT NAME OF PARTY OF THE FIRST PART)

(INSERT NAME OF PARTY OF THE SECOND PART)

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Record & Return to:

Chicago Title Insurance Company

1515 Market Street, Suite 1325

Philadelphia, PA 19102

Parecel No.

S P E C I A L W A R R A N T Y D E E D

Made this          day of                      , 2010

BETWEEN

           , a                 [corporation] (the “Grantor”);

AND

, a                          [corporation] (the “Grantee”);

WITNESSETH, that intending to be legally bound and in consideration of the sum of                                    AND 00/100 DOLLARS ($                                    .00) in hand paid, the receipt and sufficiency of which are hereby acknowledged, the Grantor hereby grants, sells and conveys to the Grantee, [its successors and assigns] [his/her/their heirs, personal representatives and assigns], forever:

All that certain lot or piece of ground situate in the                                                  , County of                            and Commonwealth of Pennsylvania, more particularly described on Exhibit A attached hereto and made a part hereof.

SUBJECT to coal and mining rights and oil and gas leases, rights-of-way; building restrictions; and other easements, covenants, reservations, restrictions, exceptions, rights, agreements and other matters of public record and other matters which would be apparent upon an accurate survey and/or upon inspection of the property.

TOGETHER with all and singular ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, use, trust, property, possession, claim and demand whatsoever, of the Grantor in law, equity, or otherwise howsoever, of, in, to or out of the same, and every part thereof.

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Prepard by:

TO HAVE AND TO HOLD the said buildings, improvements, hereditaments and premises hereby granted and released, or mentioned and intended so to be, with the appurtenances, unto the said Grantee, [its successors and assigns] [his/her/their heirs, personal representatives and assigns], and the said Grantor, for [itself/and its] [himself/herself/themselves and his/her/their heirs, personal representatives] and assigns does covenant, promise and agree to and with the said Grantee, [its successors] [his/her/their heirs, personal representatives] and assigns, by these presents, that it/he/she/they will WARRANT [GENERALLY] [SPECIALLY] the property hereby conveyed.

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NOTICE: THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. THE INCLUSION OF THIS NOTICE DOES NOT ENLARGE, RESTRICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT. (This notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 984, as amended, and is not intended as notice of unrecorded instruments, if any).

WITNESS the due execution hereof as of the day and year first written above.

WITNESS/ATTEST:	GRANTOR:
	By:
	Name:
	Title:

COMMONWEALTH OF PENNSYLVANIA	)
	) SS:
COUNTY OF	)

On this        day of                            , 2010 before me, a Notary Public, personally appeared                              , who acknowledged himself/herself to be the                     of                               , and that he/she, as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of said corporation by himself/herself as such officer.

IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year first above written.

Notary Public

My commission expires:

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NOTICE: THE UNDERSIGNED, AS EVIDENCED BY THE SIGNATURE TO THIS NOTICE AND THE ACCEPTANCE AND RECORDING OF THIS DEED, IS/ARE FULLY COGNIZANT OF THE FACT THAT THE UNDERSIGNED MAY NOT BE OBTAINING THE RIGHT OF PROTECTION AGAINST SUBSIDENCE, AS TO THE PROPERTY HEREIN CONVEYED, RESULTING FROM COAL MINING OPERATIONS AND THAT THE PURCHASED PROPERTY, HEREIN CONVEYED, MAY BE PROTECTED FROM DAMAGE DUE TO MINE SUBSIDENCE BY A PRIVATE CONTRACT WITH THE OWNERS OF THE ECONOMIC INTEREST IN THE COAL. THIS NOTICE IS INSERTED HEREIN TO COMPLY WITH THE BITUMINOUS MINE SUBSIDENCE AND LAND CONSERVATION ACT OF 1966, AS AMENDED.

WITNESS/ATTEST:	GRANTEE:
	By:
	Name:
	Title:

CERTIFICATE OF RESIDENCE

The undersigned hereby certifies that the Grantee’s precise address is

.

Agent

[If more than one notice address is applicable:

I hereby certify that (1) FOR THE PURPOSE OF DELIVERY OF TAX STATEMENTS ONLY the precise residence of the Grantees is

and (2) FOR ALL OTHER PURPOSES (including delivery of assessment change notices) the precise residence of Grantees is
                                                                                                            .]

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EXHIBIT A

Legal Description

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EXHIBIT D-4

FORM OF DELAWARE DEED

[see attached]

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Tax Parcel No.

Prepared by and return to:

[Name]

[Address]

[Note: header appears in upper right-hand corner for New Castle and Sussex Counties and upper left-hand corner for Kent County]

THIS DEED, MADE this          day of                          , 20        ,

BETWEEN                                  , a                                  , party of the first part,

                                                                                             -AND-

, a                                          , party of the second part,

WITNES SETH, that the said party of the first part, for and in consideration of                          Dollars ($                       ) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants and conveys unto the said party of the second part, its successors and assigns,

ALL that certain lot, piece or parcel of land, together with the improvements thereon, situate in                        Hundred,                      County, Delaware, and described on Exhibit “A” attached hereto and made a part hereof.

SUBJECT to all easements, covenants, restrictions, reservations, agreements and other matters of record, to the extent valid and enforceable:

BEING a part of the same lands and premises which                                             , by deed dated                              and recorded in the Office of the Recorder of Deeds in and for                                         County, State of Delaware, in Deed Book          , page   & nbsp;     , did grant and convey unto                             , a                             and grantor herein, in fee.

GRANTEE(S) ADDRESS:

IN WITNESS WHEREOF, the said party of the first part has caused this Deed to be duly executed as a sealed instrument the day and year aforesaid.

Signed, sealed and delivered in the presence of:
	By:	(SEAL)
Witness		[Name]
		[Title]

31

Attest:

[Name] [Title]

[Corporate Seal]

STATE OF	)
	) SS.
COUNTY OF	)

Be It Remembered, That on this                           day of                           , 20      , personally came before me, the Subscriber, a Notary Public for the State and County aforesaid,                                                         , the                &nb sp;                                            of                                               , party to this Deed, known to me to be such, and he acknowledged before me this Indenture to be his act; that the signature thereto is in his own proper handwriting and that his act of sealing, executing, acknowledging and delivering said Deed was duly authorized by resolution.

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

	Notary Public, Delaware
	Print Name:
[Notary Seal]	My commission expires:

32

EXHIBIT E

FORM OF ASSIGNMENT

ASSIGNMENT AND ASSUMPTION OF EXISTING LEASES

THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the “Assignment”) is made as of November          , 2010 between                                              LLC, a Delaware corporation, having an address at Two Paragon Drive, Montvale, New Jersey 07645 (“Assignor”), and WE APP           , a Delaware limited liability company, having an address at 150 Baker Avenue Extension, Suite 303, Concord, Massachusetts 07142 (“Assignee”).

R E C I T A L S :

A.    Assignor is the owner of certain property commonly known as                                and more particularly described on Schedule A attached hereto and made a part hereof (the “Premises”).

B.    The Property is subject to certain leases and agreements, as more fully set forth in the rent roll attached hereto as Schedule B (collectively, the “Leases”).

C.    Assignor, on the date hereof, has conveyed the Property to Assignee.

D.    In connection with the conveyance of the Property, Assignor has agreed to assign its interest in the Leases, and Assignee has agreed to assume Assignor’s interest therein from and after such conveyance.

NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, the parties agrees as follows:

ASSIGNOR HEREBY ASSIGNS, transfers and delivers all of the Assignor’s right, title and interest in and to the Leases.

ASSIGNEE HEREBY ACCEPTS the foregoing assignment and assumes all of the obligations of Assignor under the Leases arising or to be performed by Assignor under the Leases on and after the date hereof; and

ASSIGNEE FURTHER AGREES to indemnify assignor against and to hold Assignor harmless from any liabilities, losses, damages, claims, costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements incurred by Assignor and arising from or as a result of the failure of Assignee to perform the obligations of lessor under the Leases applicable to the period occurring from and after the date as of which this Assignment has been executed and delivered to Assignee, including without limitation, claims for the return of any security deposit listed on Schedule B.

ASSIGNOR AGREES to indemnify Assignee against and to hold Assignee harmless from any liabilities, losses, damages, claims, costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements incurred by Assignee and arising from or as a result

33

of the failure of Assignor to perform the Assignor’s obligations under the Leases, applicable to the period occurring prior to the date as of which this Assignment has been executed and during the period of Assignor’s ownership of the Property, including without limitation, claims for the return of any security deposit not listed on Schedule B.

IN WITNESS WHEREOF, this Assignment has been executed by the duly authorized officers of Assignor and Assignee as of the day and year first above written.

WITNESS:		ASSIGNOR:
		LLC, a Delaware limited
		liability company
		BY:
Name: Craig H. Feldman		Name: Christopher W. McGarry
		Title: President
WITNESS:		ASSIGNEE:
		WE APP            , a Delaware limited liability
		company
Name:	Name:
		Title:

34

EXHIBIT F

FORM OF GROUND LEASE ASSIGNMENTS

[see attached]

35

ASSIGNMENT AND ASSUMPTION OF LEASE

FOR VALUABLE CONSIDERATION,                                         , a                                         , with an address of                                         (“Assignor”), does hereby sell, transfer, and assign unto            & nbsp;                            , a                             with an address of                                         (“Assignee”), all of its right, title and interest as Tenant in and to that certain Lease Agreement dated September 8, 1977, with Commonwealth Trust Co., Trustee for Lancaster Trust, as said Lease appears of record in the Office for the Recording of Deeds in and for New Castle County, Delaware, in Deed Record M, Volume 98, Page 32, as amended, for certain parcel of land situate on Lancaster Turnpi ke, Christiana Hundred, New Castle County and State of Delaware, more particularly bounded and described therein.

Assignee does hereby accept said assignment and covenants and agrees to perform all obligations of Tenant as set forth in said Lease, as amended.

[remainder of page intentionally left blank – signature page follows]

36

IN WITNESS WHEREOF, the parties hereto have executed these presents, this        day of November, 2010.

SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF:
	[ASSIGNOR]
	By
		President
	Attest
		Secretary
	[ASSIGNEE]
	By
	Attest

37

STATE OF DELAWARE	)
	) SS.
NEW CASTLE COUNTY	)

BE IT REMEMBERED, That on this      day of November, 2010, personally came before me, the Subscriber, a Notary Public for the State of Delaware,                                                                       ,                              of                          &n bsp;   , a                                                  , party to this Instrument, known to me personally to be such, and acknowledged this Instrument to be his act and deed and the act and deed of said                                 , that the signature of the                                 thereto is in his own proper handwriting and the seal affixed is the common and corporate seal of said                                           , and that his act of sealing, executing, acknowledging and delivering said Instrument was duly authorized.

GIVEN under my Hand and Seal of office, the day and year aforesaid.

Notary Public

STATE OF DELAWARE	)
	) SS.
NEW CASTLE COUNTY	)

BE IT REMEMBERED, That on this      day of November, 2010, personally came before me, the Subscriber, a Notary Public for the State of Delaware,                                 ,                    of                                               , a                            &nb sp;    , party to this Instrument, known to me personally to be such, and acknowledged this Instrument to be his act and deed and the act and deed of said                                 , that the signature of the                                 thereto is in his own proper handwriting and the seal affixed is the common and corporate seal of said                                 , and that his act of sealing, executing, acknowledging and delivering
said Instrument was duly authorized.

GIVEN under my Hand and Seal of office, the day and year aforesaid.

Notary Public

38

EXHIBIT G

FORM OF EXISTING TENANT ATTORNMENT LETTER

PATHMARK STORES, INC
Legal Department
2 Paragon Drive
Montvale, NJ 07645

As of November    , 2010

Certified Mail, RRR

Re: Lease between Pathmark Stores, Inc., as “Landlord”, and                                 , a                                 , as “Tenant”, dated as of                                 (the “Lease”) for premises located at 92 [10] Atlantic Avenue, Queens, NY (“Demised Premises”).

Dear Sir/Madam:

Please be advised that Pathmark Stores, Inc. has sold all of its right, title and interest in the Demised Premises and the Lease to WE APP                                 , a Delaware limited liability company (“New Landlord”) effective November        , 2010.

All payments and all inquiries and notices concerning rent should be directed as follows: All property management related inquiries should be directed to New Landlord at:

Your security deposit in the amount of $                                 has been transferred to New Landlord, and you are to look to                                 for the return of same.

Please update your records and best of luck in the future.

Very truly yours,

39

By:
	Name: Christopher W. McGarry
	Title: [Vice President and Secretary]

CC: WE APP          LLC

40

EXHIBIT H -FORM OF FIRPTA CERTIFICATE

STATE OF NEW JERSEY)
	) ss
COUNTY OF BERGEN)

Christopher W. McGarry, being first duly sworn deposes and states under penalty of perjury:

1.               That he is the President of                                      LLC, the transferor of the Property located on Schedule 1 attached hereto.

2.               That the transferor’s office address is Two Paragon Drive, Montvale, New Jersey 07645.

3.               That the United States taxpayer identification number for the transferor is [22-2879612].

4.             That the transferor is not a “foreign person” as that term is defined in Section 1445(f) of the United States Internal Revenue Code of 1986, as amended (the “Code”).

5.             This affidavit is given to WE APP                                      LLC, a Delaware limited liability company, the transferee of the property described in Paragraph 1 above, for the purpose of establishing and documenting the non-foreign affidavit exemption to the withholding requirement of Section 1445 of the Code. The transferor understands that this affidavit may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

Very truly yours,

                                    , LLC

By:

Name: Christopher W. McGarry

Title: President

41

Subscribed and sworn to before me this            day of November, 2010

42

EXHIBIT I - ENVIRONMENTAL REPORTS

1.             Environmental Assessment Report prepared for Supermarkets General Corporation, 301 Blair Road, Woodbridge, NJ, BCM Project No. 06-7554-0 1, Pathmark Supermarket, Rickels Home Center and Satellite Stores, 130 White Horse Pike, Lawnside, NJ, prepared by BCM Engineers, Inc., December 1989

2.             Phase I Environmental Site Assessment, Existing Pathmark Supermarket & Shopping Center Site, 130 White Horse Pike and Gloucester Pike, Lawnside Borough, Camden County, New Jersey, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WP07-0023, dated October 10, 2007

3.             Environmental Assessment prepared for Supermarkets General Corporation, 301 Blair Road, Woodbridge, NJ, BCM Project No. 06-7554-01, Pathmark Supercenter, 1764 Grand Avenue, Baldwin, NY, prepared by BCM Engineers, Inc., December 1989

4.             Phase I Environmental Site Assessment, Existing Pathmark Supermarket, 1764 Grand Avenue, Section 36, Block 409, Lots 580, 592-595, 598 and 600, Baldwin, Town of Hempstead, Nassau County, NY, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WJ07-9914, dated October 4, 2007

5.             Environmental Assessment prepared for Supermarkets General Corporation, 301 Blair Road, Woodbridge, NJ, BCM Project No. 06-7554-01, Pathmark Supercenter, 4055 Merrick Rd., Seaford, NY, prepared by BCM Engineers, Inc., December 1989

6.             Phase I Environmental Site Assessment, Existing Pathmark Supermarket, 4055 Merrick Road, Section 57, Block G, Lot 323, Seaford, Town of Hempstead, Nassau County, NY, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WJ07-99 18, dated October 4, 2007

7.             Environmental Assessment Report prepared for Supermarkets General Corporation, 301 Blair Road, Woodbridge, NJ, BCM Project No. 06-7554-0 1, Clocktower Plaza, 92-10 Atlantic Ave., Ozone Park, NY, prepared by BCM Engineers, Inc., December 1989

8.             Phase I Environmental Site Assessment, Existing Pathmark Supermarket and Retail Stores, 92-10 Atlantic Avenue, Block 9027, Lot 11 and Block 9028, Lot 1, Ozone Park, Queens County, NY, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WJ07-9912, dated October 11, 2007

43

9.             Phase II Site Investigation, Existing Pathmark Supermarket and Retail Stores, 92-10 Atlantic Avenue, Ozone Park, Queens, NY, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WJ07-99 12, dated January 18, 2008

10.           Phase I Environmental Site Assessment, Existing Pathmark Supermarket, 421 South 69th Street, Upper Darby, Delaware County, PA, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WP07-9926, dated October 5, 2007

11.           Phase I Environmental Site Assessment, Existing Pathmark Supermarket, 3901 Lancaster Pike, Wilmington, New Castle County, DE, prepared for The Great Atlantic & Pacific Tea Co., Inc., 2 Paragon Drive, Montvale, NJ, prepared by Whitestone Associates, Inc., 35 Technology Drive, Warren, NJ, Whitestone Project #WP07-9924, dated October 9, 2007

44

EXHIBIT J - SALES AND EBITDA INFORMATION

Location(s):	Pathmark 2009 Sales		Pathmark 2009 EBITDA
421 South 69th Blvd., Upper Darby, PA	$	32,642,502	$	1,243,921
130 White Horse Pike, Lawnside, NJ	$	25,177,038	$	733,730
4055 Merrick Road, Seaford, NY	$	38,816,306	$	4,171,857
1764 Grand Avenue, Baldwin, NY	$	34,067,154	$	2,005,495
9210 Atlantic Avenue, Queens, NY	$	62,742,162	$	5,841,968
3901 Lancaster Pike, Wilmington, DE	$	21,387,807	$	131,536
Total(s) / Average(s)	$	214,832,969	$	14,128,507

45

EXHIBIT K

FORM OF EXISTING TENANT ESTOPPEL

ESTOPPEL CERTIFICATE

2010

PATHMARK STORES, INC.

Two Paragon Drive

Montvale, New Jersey 07645

[PURCHASER]

RE:
	Store # (if any)
	Lease Dated:
	Landlord:
	Tenant:
	Term Ending:
	Options:
	Purchaser:

Gentlemen:

             (“Landlord”) has notified                                              (“Tenant”) that it is under contract to sell the Premises to                                              , a                                &nbs p;             limited liability company (“Purchaser”). This certificate will be delivered to Purchaser, any party providing financing or equity funding to Purchaser or any successor or assign thereof in connection with such sale, and all such parties may rely upon the certifications set forth herein with respect to such sale and/or financing. Tenant hereby certifies as follows:

1.             A true and complete copy of the lease, including all amendments, modifications, and extensions (as amended, modified, and extended, the “Lease”), is annexed hereto and made a part hereof. The Lease, including all amendments, modifications, and extensions consists of the following documents:

(a)

(b)

46

2.               The Lease is in full force and effect and is valid and enforceable according to its terms.

3.               The Landlord is not in default under any of the terms of the Lease, nor has any event occurred which with the passage of time or the giving of notice would constitute a default under the Lease.

4.               All rent, charges or other payments due the Landlord under the Lease have been paid as of the date of this certification.

5.               Tenant has not paid any of the rents, charges or other payments due under the Lease more than one (1) month in advance as of the date of this certification. The fixed annual or base rent currently payable under the Lease is $                                              per annum payable in advance in fixed monthly installments of $                                            & nbsp; each per month and is due to be increased to $                                              on                                              . In addition, Tenant is currently paying $                                              monthly, which is Tenant’s pro rata share of common area charges; $         &n bsp;             monthly, which is Tenant’s pro rate share of taxes, and $       monthly, which is Tenant’s pro rata share of insurance premiums.

6.               Landlord is holding a security deposit in the amount of $                                              . If such blank is left blank, then Landlord is not holding any security deposit.

7.               Tenant has no claims, counterclaims, defenses or set-offs against the Landlord arising from the Lease as of the date hereof.

8.               All required construction has been completed to the Tenant’s satisfaction and Tenant is occupying the Premises. Tenant has been paid all sums (if any) with respect to allowances for construction performed at the premises under the Lease or any other allowances or other tenant inducements provided for in the Lease.

9.               Tenant’s interest in the premises under the Lease has not been assigned or encumbered, and no portion of such premises has been encumbered.

10.           Any notices which may or shall be given to Tenant under the terms of the Lease are to be sent to Tenant at the following address:

47

11. Tenant has not requested any rent relief or other concessions from Landlord concerning any Lease obligation. Tenant does not presently perceive any reason it can not continue to meets its Lease obligations as same accrue in the ordinary course.

The undersigned has all requisite authority to execute this certificate on behalf of Tenant. The undersigned acknowledges that the parties entitled to rely on this certificate will rely on this certificate in connection with the decision to purchase the Property and/or provide financing in connection therewith.

Very truly yours,

TENANT:

By:

Name:

Title:

48

EXHIBIT L

FORMS OF GROUND LANDLORD CONSENT AND ESTOPPEL

[see attached]

49

GROUND LESSOR ESTOPPEL (WILMINGTON, DE)

[GROUND LESSOR ENTITY AND ADDRESS INFO]

November           , 2010

WE APP Wilmington LLC (“Assignee”)

c/o Winstanley Enterprises LLC

130 Baker Avenue Extension, Suite 303

Concord, Massachusetts 01742

RE:	Pathmark Key #:	72-589B
	Ground Lease Dated:	September 8, 1977
	Ground Lessor:	3801 Wilmington Corporation.
	Ground Lessee:	Pathmark Stores, Inc.
	Demised Premises:	4001 Lancaster Pike
		Wilmington, DE

Ladies and Gentlemen:

Ground Lessor hereby certifies as follows:

1. That certain Lease between Commonwealth Trust Co., your predecessor in interest, (Lessor) and 909 Group, L.P., our predecessor in interest (Lessee) dated as of September 8, 1977 (as amended or otherwise modified by the documents listed below, the “Ground Lease”) has not been modified either orally or in writing except as follows:

(a)             Amendment of Lease dated February 28, 1979

(b)             Amendment of Lease dated December 11, 1979

(c)             Assignment of Lease date November 29, 1994

(f)              Assignment of Lease dated June 11, 1980

(e)             Renewal Notice [9/8/97 – 9/7/02] dated March 3, 1997

(f)              Renewal Notice [9/8/02 – 9/7/07] dated January 31, 2002

(g)             Notice [Transfer of Ownership] dated August 9, 2007

(h)             Notice [Transfer of Ownership] dated February 6, 2009

(i)              Assignment and Assumption of Lease dated September 3, 2009

The Ground Lease is in full force and effect and is valid and enforceable according to its terms. A true and complete copy of the Ground Lease (including all documents listed above) is attached hereto and made a part hereof.

2.The term of the Ground Lease expires on September 7, 2012. Ground Lessee has six (6) remaining renewal options of five (5) ears each.

50

3.Neither Ground Lessee nor Ground Lessor is in default of its obligations under the Ground Lease and, to the best of Ground Lessor’s knowledge, there is no state of facts that with the giving of notice, the passage of time, or both, could ripen into such a default.

4.All rent, charges or other payments due the Ground Lessor under the Ground Lessee have been paid as of the date of this Ground Lessor Estoppel.

5.Ground Lessee has not paid any of the rents, charges or other payments due under the Ground Lease more than one (1) month in advance as of the date of this Ground Lessor Estoppel. The fixed annual or base rent currently payable under the Ground Lease is $3,500.04 pr annum payable in advance in fixed monthly installments of $291.67 each per month.

6.There is no security deposit under the Ground Lease.

7.Ground Lessor confirms that its address for purposes of notice under the Ground Lease is as follows:                  .

8.Ground Lessor’s consent is not required in connection with the assignment of Ground Lessee’s interest in the Ground Lease to Assignee.

9.Ground Lessor has not assigned the Ground Lease or any of its interests therein.

10.Ground Lessor has no claims, counterclaims, defenses or set-offs against Ground Lessee arising from the Ground Lease as of the date hereof.

This Ground Lessor’s Estoppel shall be binding upon Ground Lessor and its successors and assigns (if any). Ground Lessor understands and agrees that this Ground Lessor’s Estoppel may be relied upon by (i) Assignee and its successors or assigns, (ii) each lender of Assignee that finances all or any portion of the price paid in connection with the assignment of the Ground Lessee’s interest in the Ground Lease to Assignee or otherwise provides debt financing to Assignee (and any successor or assign of any of the foregoing) and (iii) any title insurance provider of any of the foregoing. The person executing this Ground Lessor’s Estoppel on behalf of Ground Lessor represents and warrants that he or she has full power and authority to execute this Ground Lessor’s Estoppel on the Ground Lessor’s behalf. The Ground Lessor shall cooperate in recording a memorandum of this Gro und Lessor’s Estoppel upon Assignee’s request.

Very truly yours,

GROUND LESSOR:

3801 WILMINGTON CORPORATION, a Delaware corporation

51

By:

Name:

Title:

52

GROUND LESSOR ESTOPPEL (OZONE PARK, NY)

[GROUND LESSOR ENTITY AND ADDRESS INFO]

October           , 2010

WE APP Ozone Park LLC (“Assignee”)

c/o Winstanley Enterprises LLC

130 Baker Avenue Extension, Suite 303

Concord, Massachusetts 01742

RE:	Pathmark Key #:	72-626B
	Ground Lease Dated:	August 7, 1987
	Ground Lessor:	7 Horizon Corp.
	Ground Lessee:	Pathmark Stores, Inc.
	Demised Premises:	92-10 Atlantic Avenue
		Ozone Park, NY

Ladies and Gentlemen:

Ground Lessor hereby certifies as follows:

1. That certain Lease between 7 Horizon Corp. (Landlord) and Pathmark Stores, Inc. formerly known as Supermarkets General Corporation (Tenant) dated as of August 7, 1987 (as amended or otherwise modified by the documents listed below, the “Ground Lease”) has not been modified either orally or in writing except as follows:

(a)             Declaration of Easement dated August 7, 1987

(b)             Letter Agreement dated March 28, 1990

(c)             Assignment of Lessor’s Interest in Lease date March 29, 1990

(g)            Renewal Notice {6/1/8 – 5/31/13] dated July 25, 2007

(e)             First Amendment to Lease dated September 10, 2010

The Ground Lease is in full force and effect and is valid and enforceable according to its terms. A true and complete copy of the Ground Lease (including all documents listed above) is attached hereto and made a part hereof.

11.         The term of the Ground Lease expires on May 31, 2013. Ground Lessee has five (5) remaining renewal options of five (5) ears each.

53

12.Neither Ground Lessee nor Ground Lessor is in default of its obligations under the Ground Lease and, to the best of Ground Lessor’s knowledge, there is no state of facts that with the giving of notice, the passage of time, or both, could ripen into such a default.

13.All rent, charges or other payments due the Ground Lessor under the Ground Lessee have been paid as of the date of this Ground Lessor Estoppel.

14.Ground Lessee has not paid any of the rents, charges or other payments due under the Ground Lease more than one (1) month in advance as of the date of this Ground Lessor Estoppel. The fixed annual or base rent currently payable under the Ground Lease is $57,500 per annum payable in advance in fixed monthly installments of $4,791.60 each per month.

15.There is no security deposit under the Ground Lease.

16.Ground Lessor confirms that its address for purposes of notice under the Ground Lease is as follows:       

17.Ground Lessor’s consent is not required in connection with the assignment of Ground Lessee’s interest in the Ground Lease to Assignee.

18.Ground Lessor has not assigned the Ground Lease or any of its interests therein.

19.Ground Lessor has no claims, counterclaims, defenses or set-offs against Ground Lessee arising from the Ground Lease as of the date hereof.

This Ground Lessor’s Estoppel shall be binding upon Ground Lessor and its successors and assigns (if any). Ground Lessor understands and agrees that this Ground Lessor’s Estoppel may be relied upon by (i) Assignee and its successors or assigns, (ii) each lender of Assignee that finances all or any portion of the price paid in connection with the assignment of the Ground Lessee’s interest in the Ground Lease to Assignee or otherwise provides debt financing to Assignee (and any successor or assign of any of the foregoing) and (iii) any title insurance provider of any of the foregoing. The person executing this Ground Lessor’s Estoppel on behalf of Ground Lessor represents and warrants that he or she has full power and authority to execute this Ground Lessor’s Estoppel on the Ground Lessor’s behalf. The Ground Lessor shall cooperate in recording a memorandum of this Gro und Lessor’s Estoppel upon Assignee’s request.

Very truly yours,

GROUND LESSOR:

7 HORIZON CORP., a New York corporation

54

By:

Name:

Title:

55

EXHIBIT M

FORM OF SECRETARY’S CERTIFICATE

[see attached]

56

PLAINBRIDGE LLC
(a Delaware limited liability company)

Written Consent of
the Board of Managers in Lieu of a Meeting

The undersigned, being all the members of the Board of Managers (the “Board”) of Plainbridge, LLC, a Delaware limited liability company (the “Company”), do hereby consent to the following actions and do hereby adopt the following resolutions by unanimous written consent in lieu of a meeting pursuant to the laws of the state in which the Company is organized, as the act of and for the Company in the same manner as if duly presented to and approved at a meeting of the Board duly called and held for such purposes:

RESOLVED, that the Board of Managers hereby ratifies, authorizes and approves the following: that Plainbridge, LLC sell all of its right, title and interest in and to certain plots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and related to certain premises, known as: 130 White Horse Pike, Lawnside, NJ; 4055 Merrick Road, Seaford, New York; 1764 Grand Avenue, Baldwin, New York and 9210 Atlantic Avenue, Queens, New York to Winstanley, LLC or its assigns, as Buyer, and it is further

RESOLVED, that the officers of the Company are hereby authorized and empowered to do and perform all acts, matters and things and to execute and deliver and cause to be executed and delivered all certifications, instruments and documents deemed by them to be necessary, proper, convenient or advisable to carryout the purposes and intent of the foregoing resolutions; and it is further

RESOLVED, that the following officer of the Company is hereby authorized to sign agreements, closing statements, certifications and other documents in furtherance of these resolutions - Christopher McGarry as President.

	Board of Managers:
.                                :
	Brenda Galgano
	Michael Gualtieri
	Christopher McGarry
Dated: November 1, 2010

57

UPPER DARBY STUART, LLC
(a Delaware limited liability company)

Written Consent of
the Board of Managers in Lieu of a Meeting

The undersigned, being all the members of the Board of Managers (the “Board”) of Upper Darby Stuart, LLC, a Delaware limited liability company (the “Company”), do hereby consent to the following actions and do hereby adopt the following resolutions by unanimous written consent in lieu of a meeting pursuant to the laws of the state in which the Company is organized, as the act of and for the Company in the same manner as if duly presented to and approved at a meeting of the Board duly called and held for such purposes:

RESOLVED, that the Board of Managers hereby ratifies, authorizes and approves the following: that Upper Darby Stuart, LLC sell all of its right, title and interest in and to that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and related to that certain premise, known as: 421 South 69th Boulevard, Upper Darby, PA to Winstanley, LLC or its assigns, as Buyer, and it is further

RESOLVED, that the officers of the Company are hereby authorized and empowered to do and perform all acts, matters and things and to execute and deliver and cause to be executed and delivered all certifications, instruments and documents deemed by them to be necessary, proper, convenient or advisable to carryout the purposes and intent of the foregoing resolutions; and it is further

RESOLVED, that the following officer of the Company is hereby authorized to sign agreements, closing statements, certifications and other documents in furtherance of these resolutions - Christopher McGarry as President.

	Board of Managers:
.                             :
	Brenda Galgano
	Michael Gualtieri
	Christopher McGarry
Dated: November 1, 2010

58

LANCASTER PIKE STUART LLC
(a Delaware limited liability company)

Written Consent of
the Board of Managers in Lieu of a Meeting

The undersigned, being all the members of the Board of Managers (the “Board”) of Lancaster Pike Stuart, LLC, a Delaware limited liability company (the “Company”), do hereby consent to the following actions and do hereby adopt the following resolutions by unanimous written consent in lieu of a meeting pursuant to the laws of the state in which the Company is organized, as the act of and for the Company in the same manner as if duly presented to and approved at a meeting of the Board duly called and held for such purposes:

RESOLVED, that the Board of Managers hereby ratifies, authorizes and approves the following: that Lancaster Pike Stuart, LLC sell all of its right, title and interest in and to certain plots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and related to certain premises, known as: 3901 Lancaster Pike, Wilmington, DE to Winstanley, LLC or its assigns, as Buyer, and it is further

RESOLVED, that the officers of the Company are hereby authorized and empowered to do and perform all acts, matters and things and to execute and deliver and cause to be executed and delivered all certifications, instruments and documents deemed by them to be necessary, proper, convenient or advisable to carryout the purposes and intent of the foregoing resolutions; and it is further

RESOLVED, that the following officer of the Company is hereby authorized to sign agreements, closing statements, certifications and other documents in furtherance of these resolutions - Christopher McGarry as President.

	Board of Managers:
.                              :
	Brenda Galgano
	Michael Gualtieri
	Christopher McGarry
Dated: November 1, 2010

59

PATHMARK STORES, INC.

UNANIMOUS WRITTEN CONSENT
OF DIRECTORS IN LIEU OF MEETING

The undersigned, being all of the Directors of Pathmark Stores, Inc., a Delaware corporation (the “Company”) in lieu of a meeting of the Board of Directors, hereby consents to and adopts the following resolutions with the full force and effect as if the same has been duly adopted at a meeting of the Board of Directors held pursuant to notice duly given:

RESOLVED, that the Board of Directors hereby ratifies, authorizes and approves the following: that Pathmark Stores, Inc. agrees to lease the properties listed on Exhibit A from the respective companies, and it is further

RESOLVED, that the President, and any Vice President be and hereby is, authorized and directed to execute and deliver contracts for the purchase and/or sale of real and personal property, mortgages and/or deeds in connection therewith, leases, lease assignments, assumption agreements, estoppel certificates, lease terminations, lease amendments and other forms of contracts or agreements in connection with any of the foregoing for the Company or any of its subsidiaries, on such occasion and in such form as he in his discretion shall determine.

RESOLVED, that the President or any Vice President be, and each of them acting alone hereby is, authorized to take all such action and to prepare, execute, deliver and file all such agreements, instruments, documents and certificates in the name and on behalf of the Company, under its corporate seal or otherwise, and to incur and to pay all such fees and expenses as they, or any on of them, shall deem necessary, proper or advisable in order to carry out the intent and effectuate the purpose of the foregoing resolution.

.                          Directors:
	Brenda Galgano
	Michael Gualtieri
	Christopher McGarry

Dated: November 1, 2010

60

Exhibit A

PROPERTY:	421 South 69th Blvd.
	Upper Darby, PA
	130 White Horse Pike
	Lawnside, NJ
	4055 Merrick Road
	Seaford, NY
	1764 Grand Avenue
	Baldwin, NY
	9210 Atlantic Avenue
	Queens, NY
	3901 Lancaster Pike
	Wilmington, DE
LESSORS:
	WE APP Baldwin LLC
	WE APP Lawnside LLC
	WE APP Ozone Park LLC
	WE APP Seaford LLC
	WE APP Upper Darby LLC
	WE APP Wilmington LLC

61

CERTIFICATION

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

I, Christopher W. McGarry, do hereby certify that I am the Senior Vice President, General Counsel and Secretary of THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation, and that the following is a true and correct copy of a resolution duly adopted by the Board of Directors of The Great Atlantic & Pacific Tea Company, Inc. at a meeting held on December 4, 1990 at which a quorum was present and acting throughout; and that said resolution has not been amended, revoked or rescinded and is now in full force and effect:

“RESOLVED, that this Corporation is hereby authorized and empowered to enter into guarantees of obligations due to suppliers, lenders, mortgagees, lessors or any other person, providing for the prompt payment when due, whether by acceleration or otherwise, of all debts, rents and other amounts whatsoever payable by Waldbaum, Inc., or any wholly owned subsidiary of the Corporation or payable by any subsidiary of Waldbaum, Inc. or payable by any subsidiary of any other wholly owned subsidiary of the Corporation, to such a person, its successors and assigns, in such form as the Chairman and Chief Executive Officer, any Vice Chairman, the Executive Vice President and Chief Financial Officer, or the Senior Vice President and General Counsel shall deem appropriate, and each such officer is authorized and empowered to execute and deliver such guaranty in the name of and on behalf of th is Corporation, and such officer is further authorized to affix the seal of this Corporation to such guaranty and to furnish such certificates and instruments as such officer deems appropriate in connection therewith.”

I FURTHER CERTIFY that Pathmark Stores, Inc., a Delaware corporation, is a subsidiary of The Great Atlantic & Pacific Tea Company, Inc.

AND I FURTHER CERTIFY that the following individual has been duly elected to the office indicated in said Company and holds the same as of the date hereof, that he is authorized pursuant to the foregoing resolution to execute and deliver contracts, agreements, leases, deeds, mortgages and other instruments and that his true and correct signature appears below:

NAME	OFFICE	SIGNATURE
David Kelly	Vice President
	Pathmark Stores, Inc.

62

IN WITNESS WHEREOF, I have set my hand and affixed the official seal of the Corporation this 3rd day of November, 2010.

Christopher W. McGarry

Senior Vice President,

  General Counsel & Secretary

63

EX-10.4

 Exhibit 10.4

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

December 27, 2007

among

THE GREAT ATLANTIC & PACIFIC

TEA COMPANY, INC.,

and

The Other Borrowers Party Hereto,

as Borrowers

and

The Lenders Party Hereto,

and

BANK OF AMERICA, N.A.,

as Administrative Agent and Collateral Agent

and

JPMORGAN CHASE BANK, N.A.

WELLS FARGO RETAIL FINANCE LLC

As Co-Syndication Agents

and

THE CIT GROUP/BUSINESS CREDIT, INC.

as Documentation Agent

and

BANC OF AMERICA SECURITIES LLC

JPMORGAN CHASE BANK, N.A.

as Co-Lead Arrangers

TABLE OF CONTENTS

		Page
ARTICLE I Definitions		6
	SECTION 1.01 Defined Terms	6
	SECTION 1.02 Classification of Loans and Borrowings	48
	SECTION 1.03 Terms Generally	48
	SECTION 1.04 Accounting Terms; GAAP	49
	SECTION 1.05 Borrowing Base Adjustments	49
	SECTION 1.06 Letter of Credit Amounts	50
ARTICLE II The Credits		50
	SECTION 2.01 Loans; Mandatory Advances of Tranche A-1 Loans	50
	SECTION 2.02 Increase in Tranche A Commitments	52
	SECTION 2.03 Loans and Borrowings	53
	SECTION 2.04 Requests for Borrowings	54
	SECTION 2.05 Swingline Loans	55
	SECTION 2.06 Letters of Credit	55
	SECTION 2.07 Funding of Borrowings	60
	SECTION 2.08 Interest Elections	61
	SECTION 2.09 Termination or Reduction of Commitments	62
	SECTION 2.10 Repayment of Loans; Evidence of Debt	64
	SECTION 2.11 Prepayment of Loans	65
	SECTION 2.12 Fees	69
	SECTION 2.13 Interest	70
	SECTION 2.14 Alternate Rate of Interest	71
	SECTION 2.15 Increased Costs	71
	SECTION 2.16 Break Funding Payments	72
	SECTION 2.17 Taxes	73
	SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs	75
	SECTION 2.19 Mitigation Obligations; Replacement of Lenders	76
	SECTION 2.20 Designation of Company as each Borrowers’ Agent	77
ARTICLE III Representations and Warranties		78
	SECTION 3.01 Organization; Powers	78
	SECTION 3.02 Authorization; Enforceability	78
	SECTION 3.03 Governmental Approvals; No Conflicts	78
	SECTION 3.04 Financial Condition; No Material Adverse Change	78
	SECTION 3.05 Properties	79
	SECTION 3.06 Litigation and Environmental Matters	80
	SECTION 3.07 Compliance with Laws and Agreements	80
	SECTION 3.08 Investment Company Status	80
	SECTION 3.09 Taxes	80
	SECTION 3.10 Employee Benefit Plans	81
	SECTION 3.11 Disclosure	81

i

	SECTION 3.12 Subsidiaries	81
	SECTION 3.13 Insurance	81
	SECTION 3.14 Labor Matters	81
	SECTION 3.15 Security Documents	81
	SECTION 3.16 Federal Reserve Regulations	83
ARTICLE IV Conditions		83
	SECTION 4.01 Restatement Effective Date	83
	SECTION 4.02 Each Credit Event	84
ARTICLE V Affirmative Covenants		85
	SECTION 5.01 Financial Statements and Other Information	85
	SECTION 5.02 Notices of Material Events	88
	SECTION 5.03 Information Regarding Collateral	89
	SECTION 5.04 Existence; Conduct of Business	89
	SECTION 5.05 Payment of Obligations	90
	SECTION 5.06 Maintenance of Properties	90
	SECTION 5.07 Insurance	90
	SECTION 5.08 Casualty and Condemnation	91
	SECTION 5.09 Books and Records; Inspection and Audit Rights	92
	SECTION 5.10 Compliance with Laws	92
	SECTION 5.11 Use of Proceeds and Letters of Credit	92
	SECTION 5.12 Additional Subsidiaries	93
	SECTION 5.13 Further Assurances	93
	SECTION 5.14 Cash Management	94
	SECTION 5.15 Priority of Claims Waivers	97
	SECTION 5.16 Benefit Plans Payments	97
ARTICLE VI Negative Covenants		97
	SECTION 6.01 Indebtedness; Certain Equity Securities	97
	SECTION 6.02 Liens	99
	SECTION 6.03 Fundamental Changes	100
	SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions	101
	SECTION 6.05 Asset Sales	102
	SECTION 6.06 Sale and Leaseback Transactions	103
	SECTION 6.07 Hedging Agreements	103
	SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness	104
	SECTION 6.09 Transactions with Affiliates	105
	SECTION 6.10 Restrictive Agreements	105
	SECTION 6.11 Amendment of Material Documents	105
	SECTION 6.12 Minimum Excess Availability	105
	SECTION 6.13 Limitation on Change in Fiscal Year	105
ARTICLE VII Events of Default		106
	SECTION 7.01 Events of Default	106
	SECTION 7.02 Remedies Upon Event of Default	108
	SECTION 7.03 Application of Funds	109

ii

ARTICLE VIII The Agents		111
	SECTION 8.01 Appointment and Administration by Administrative Agent	111
	SECTION 8.02 Appointment of Collateral Agent	112
	SECTION 8.03 Agreement of Applicable Lenders	112
	SECTION 8.04 Liability of Agents	112
	SECTION 8.05 Notice of Default	113
	SECTION 8.06 Credit Decisions	114
	SECTION 8.07 Reimbursement and Indemnification	114
	SECTION 8.08 Rights of Agents	115
	SECTION 8.09 Notice of Transfer	115
	SECTION 8.10 Successor Agents	115
	SECTION 8.11 Relation Among the Lenders	115
	SECTION 8.12 Reports and Financial Statements	115
	SECTION 8.13 Agency for Perfection	116
	SECTION 8.14 Delinquent Lender	117
	SECTION 8.15 Collateral and Guaranty Matters	117
	SECTION 8.16 Syndication Agent; Documentation Agent and Lead Arranger	118
ARTICLE IX Miscellaneous		118
	SECTION 9.01 Notices	118
	SECTION 9.02 Waivers; Amendments	120
	SECTION 9.03 Expenses; Indemnity; Damage Waiver	122
	SECTION 9.04 Successors and Assigns	123
	SECTION 9.05 Survival	128
	SECTION 9.06 Counterparts; Integration; Effectiveness	128
	SECTION 9.07 Severability	128
	SECTION 9.08 Right of Setoff	129
	SECTION 9.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS	129
	SECTION 9.10 WAIVER OF JURY TRIAL	130
	SECTION 9.11 Headings	130
	SECTION 9.12 Confidentiality	130
	SECTION 9.13 Interest Rate Limitation	131
	SECTION 9.14 Patriot Act	131
	SECTION 9.15 Foreign Asset Control Regulations	131
	SECTION 9.16 Additional Waivers	132
	SECTION 9.17 No Advisory or Fiduciary Responsibility	133
	SECTION 9.18 Press Releases	134
	SECTION 9.19 Existing Credit Agreement Amended and Restated	134

iii

SCHEDULES:
Schedule A	—	Priming Jurisdictions
Schedule B	—	Distribution Centers
Schedule C	—	Financial and Collateral Reports
Schedule 1.01(A)	—	Existing Letters of Credit
Schedule 1.01(B)	—	Title Policy Endorsements
Schedule 1.01(C)		Principal Properties
Schedule 1.01(D)		Immaterial Subsidiaries
Schedule 2.01	—	Lenders and Commitments
Schedule 3.01		Subsidiaries not in Good Standing
Schedule 3.06	—	Disclosed Matters
Schedule 3.12	—	Subsidiaries
Schedule 3.13	—	Insurance
Schedule 3.15(b)	—	UCC Filings
Schedule 3.15(c)	—	Intellectual Property Filings
Schedule 5.01		Internet Addresses
Schedule 5.14(a)	—	DDA Accounts
Schedule 5.14(b)	—	Credit Card Arrangements
Schedule 5.14(c)	—	Third Party Insurance Payors
Schedule 5.14(d)(iii)	—	Blocked Accounts
Schedule 5.14(i)	—	Disbursement Accounts
Schedule 6.01	—	Existing Indebtedness
Schedule 6.02	—	Existing Liens
Schedule 6.04	—	Existing Investments
Schedule 6.10	—	Existing Restrictions
EXHIBITS:
Exhibit A	—	Form of Assignment and Acceptance
Exhibit B	—	Form of Borrowing Base Certificate
Exhibit C	—	Form of Guaranty
Exhibit D	—	Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E	—	Form of Perfection Certificate
Exhibit F	—	Form of Pledge Agreement
Exhibit G	—	Form of Security Agreement
Exhibit H	—	Form of Additional Commitment Lender Joinder Agreement
Exhibit I	—	Form of Opinion General Counsel of the Loan Parties
Exhibit J	—	Form of Opinion of Cahill Gordon & Reindel LLP
Exhibit K	—	Form of Credit Card Notification
Exhibit L	—	Form of Insurance Provider Notification
Exhibit M	—	Form of Blocked Account Agreement
Exhibit N	—	Form of Coinstar Notification
Exhibit O	—	Form of DDA Notification
Exhibit P-1	—	Form of Priority of Claims Waiver (Landlord)
Exhibit P-2		Form of Priority Claims Waiver (Bailee)
Exhibit Q-1		Form of Mortgage

iv

Exhibit Q-2	Form of Mortgage (Principal Properties)
Exhibit R	Form of New Borrower Joinder Agreement

v

AMENDED AND RESTATED CREDIT AGREEMENT

AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of December 27, 2007, among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation;

the other BORROWERS party hereto,

the LENDERS party hereto, and

BANK OF AMERICA, N.A., a national banking association, as Administrative Agent and Collateral Agent.

W I T NE S S E T H

WHEREAS, the Borrowers have entered into a Credit Agreement dated as of December 3, 2007 with Bank of America, N.A., as Administrative Agent and Collateral Agent for the Lenders party thereto and such Lenders (as amended and in effect, the “Existing Credit Agreement”); and

WHEREAS, the Borrowers, the Agent and the Lenders desire to amend and restate the Existing Credit Agreement as set forth herein.

NOW, THEREFORE, the parties hereto agree that the Existing Credit Agreement shall be amended and restated in its entirety to read as follows:

ARTICLE I
Definitions

SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“Act” has the meaning set forth in Section 9.14.

“Additional Availability Amount” shall mean the sum of (a) the product of (i) 15% (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Eligible Real Estate (other than Eligible Real Estate consisting of the Principal Properties), plus (b) the product of (i) 15% (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Principal Properties; plus (c) during the period commencing on the Restatement Effective Date and ending on and including November 30, 2009, the lesser of

6

(x) the Term A-2 Leasehold Cap and (y) the product of (i) the Leasehold Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Eligible Leaseholds.

“Additional Commitment Lender” has the meaning set forth in Section 2.02(a).

“Adjusted LIBO Rate” means, for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“Administrative Agent” means Bank of America, N.A., in its capacity as administrative agent for the Lenders hereunder, together with its successors and assigns.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affected LIBOR Loans” has the meaning set forth in Section 2.11(k).

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Agent” means each of the Administrative Agent and the Collateral Agent.

“Agent’s Account” has the meaning set forth in Section 5.14(f).

“Agreement” has the meaning set forth in the preamble hereto.

“Aggregate Commitments” means the sum of the Aggregate Tranche A Commitments of all the Tranche A Lenders, the Aggregate Tranche A-1 Commitments of all the Tranche A-1 Lenders, the Aggregate Term Outstandings of all Term Lenders, and the Aggregate Term A-2 Outstandings of all Term A-2 Lenders.  As of the Restatement Effective Date, the Aggregate Commitments are $675,000,000.

“Aggregate Revolving Commitments” means, collectively, the Aggregate Tranche A Commitments and the Aggregate Tranche A-1 Commitments.

“Aggregate Term A-2 Outstandings” means, at any time, the aggregate outstanding principal balance of the Term A-2 Loans of all Term A-2 Lenders at such time.  As of the Restatement Effective Date, the Aggregate Term A-2 Outstandings are $50,000,000.

“Aggregate Term Outstandings” means, at any time, the aggregate outstanding principal balance of the Term Loans of all Term Lenders at such time.  As of the Restatement Effective Date, the Aggregate Term Outstandings are $82,900,000.

7

“Aggregate Tranche A Commitments” means, at any time, the sum of the Tranche A Commitments at such time.  As of the Restatement Effective Date, the Aggregate Tranche A Commitments are $502,100,000.

“Aggregate Tranche A-1 Commitments” means, at any time, the sum of the Tranche A-1 Commitments at such time.  As of the Restatement Effective Date, the Aggregate Tranche A-1 Commitments are $40,000,000.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus one-half of one percent (0.50%).  Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

“Applicable Law” means  as to any Person, all statutes, rules, regulations, orders, or other requirements having the force of law and applicable to such Person, and all court orders and injunctions, and/or similar rulings and applicable to such Person, in each case of or by any Governmental Authority, or court, or tribunal which has jurisdiction over such Person, or any property of such Person.

“Applicable Margin” means, for any Interest Payment Date with respect to a particular Type of Loan, (a) from and after the Restatement Effective Date through March 31, 2008, the percentages set forth in Level 3 of the applicable pricing grid below; and (b) thereafter, the applicable rate per annum set forth in the applicable pricing grid below based upon the Average Daily Excess Availability during the immediately preceding fiscal quarter:

(a) If Eligible Leaseholds are included in the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base:

Level	Average Daily Excess Availability	ABR Applicable Margin (Tranche A and Term Loan)		Applicable LIBOR Margin (Tranche A and Term Loan)		ABR Applicable Margin (Tranche A-1)		Applicable LIBOR Margin (Tranche A-1)		Applicable LIBOR Margin (Term A-2 Loan)		ABR Applicable Margin (Term A-2 Loan)		Tranche A Unused Fee		Tranche A-1 Unused Fee
1	Greater than or equal to $400,000,000	0.75	%	2.00	%	1.75	%	3.25	%	5.25	%	3.75	%	0.25	%	0.50	%
2	Greater than or equal to $200,000,000 but less than $400,000,000	0.75	%	2.25	%	2.00	%	3.50	%	5.25	%	3.75	%	0.25	%	0.50	%
3	Less than $200,000,000	1.00	%	2.50	%	2.25	%	3.75	%	5.25	%	3.75	%	0.25	%	0.375	%

8

(b) If Eligible Leaseholds are not included in the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base:

Level	Average Daily Excess Availability	ABR Applicable Margin (Tranche A and Term Loan)		Applicable LIBOR Margin (Tranche A and Term Loan)		ABR Applicable Margin (Tranche A-1)		Applicable LIBOR Margin (Tranche A-1)		Applicable LIBOR Margin (Term A-2 Loan)		ABR Applicable Margin (Term A-2 Loan)		Tranche A Unused Fee		Tranche A-1 Unused Fee
1	Greater than or equal to $400,000,000	0.50	%	1.75	%	1.75	%	3.25	%	5.25	%	3.75	%	0.25	%	0.50	%
2	Greater than or equal to $200,000,000 but less than $400,000,000	0.50	%	2.00	%	2.00	%	3.50	%	5.25	%	3.75	%	0.25	%	0.50	%
3	Less than $200,000,000	0.75	%	2.25	%	2.25	%	3.75	%	5.25	%	3.75	%	0.25	%	0.375	%

Except as provided in the following sentence, the Applicable Margin shall be adjusted quarterly as of the first day of each fiscal quarter of the Company commencing April 1, 2008, based upon the Average Daily Excess Availability for the immediately preceding fiscal quarter. Upon the occurrence and during the continuance of an Event of Default, at the election of the Required Lenders, interest shall be determined in the manner set forth in Section 2.13(c).

“Applicable Percentage” means (a) with respect to each Credit Extension under the Tranche A Commitments, the Tranche A Applicable Percentage, (b) with respect to each Credit Extension under the Tranche A-1 Commitments, the Tranche A-1 Applicable Percentage, (c) with respect to the Term Loan, the Term Applicable Percentage (d) with respect to the Term A-2 Loan, the Term A-2 Applicable Percentage and (e) with respect to each Lender, that percentage of the Aggregate Commitments of all Lenders hereunder to make Credit Extensions to the Borrowers, in each case as the context provides.   If any of the Tranche A Commitments or Tranche A-1 Commitments have terminated or expired, the Applicable Percentage with respect to such Commitments shall be determined based upon such Commitments as most recently in effect.

“Appraised Value” means (a) with respect to the Borrowers’ Eligible Inventory, the net appraised orderly liquidation value (which is expressed as a percentage of Cost) of the Borrowers’ Eligible Inventory as set forth in the Borrowers’ inventory stock ledger or (b) with respect to the Borrowers’ Scripts, the orderly liquidation value of the Borrowers’ Scripts as set forth in the most recent appraisal of the Borrowers’ Scripts conducted by an independent appraiser reasonably satisfactory to the Administrative Agent or (c) with respect to the Borrowers’ Eligible Real Estate, the fair market value of the Borrowers’ Eligible Real Estate as set forth in the most recent appraisal of the Borrowers’ Eligible Real Estate conducted by an

9

independent appraiser reasonably satisfactory to the Administrative Agent, which appraisal shall assume, among other things, a marketing time of not greater than twelve (12) months or less than three (3) months or (d) with respect to the Borrowers’ Eligible Leaseholds, the forced liquidation value of the Borrowers’ Eligible Leaseholds as set forth in the most recent appraisal of the Borrowers’ Eligible Leaseholds conducted by an independent appraiser reasonably satisfactory to the Administrative Agent, which appraisal shall assume, among other things, a marketing time of not greater than twelve (12) months or less than three (3) months; provided that the Appraised Value of Eligible Real Estate and Eligible Leaseholds shall in no event exceed the maximum amount of the Obligations at any time specified to be secured by a Mortgage thereon.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Swap” means any transaction or series of related transactions pursuant to which the Borrowers or one or more of the Subsidiaries shall exchange, with a Person not a Subsidiary, one or more stores or facilities owned by them for one or more stores or facilities owned by third parties where no more than 10% of the aggregate consideration delivered by the Borrowers and the Subsidiaries shall consist of consideration other than the stores and facilities being so exchanged.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“Availability Period” means the period from and including the Effective Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 7.02, and (c) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.09.

“Availability Reserves” means such reserves as the Administrative Agent from time to time determines in the Administrative Agent’s reasonable credit judgment as being appropriate (a) to reflect the impediments to the Agents’ ability to realize upon the Collateral or (b) to reflect costs, expenses and other amounts that the Agents may incur or be required to pay to realize upon the Collateral.  Availability Reserves may include (but are not limited to) reserves based on (i) the aggregate dollar amount represented by gift certificates then outstanding and entitling the holder thereof to use all or a portion thereof to pay all or a portion of the purchase price for any Inventory as of such day, (ii) the Reserve for Leasehold Obligations, (iii) the PACA/PASA Liability Reserve (to the extent Inventory subject to PACA or PASA is included in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base), (iv) the maximum aggregate amount (giving effect to any netting agreements) that the Company and its Subsidiaries would be required to pay under any Hedging Agreements secured by the Security Documents the obligations under which constitute Obligations if such Hedging Agreements were terminated,

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determined as of the most recent date for which financial statements have been delivered pursuant to Section 5.01(a), (b) or (c), (v) outstanding Taxes and other governmental charges, including, ad valorem, real estate, personal property, sales, and other Taxes (in each case to the extent such Taxes or other governmental charges are due and payable (except if being contested in good faith in appropriate proceedings and for which adequate reserves have been taken) and entitle any Person to a Lien on any Collateral that has priority over, or is otherwise superior in right to, the Lien in such Collateral Agent for the benefit of the Secured Parties), (vi) Cash Management Reserves, (vii) Bank Products Reserves, and (viii) Realty Reserves.  Provided no Default or Event of Default has occurred and is continuing, the Administrative Agent shall give the Borrowers ten (10) days pr ior notice of the imposition of any Availability Reserve not described in clauses (i) through (viii) above.

“Average Daily Excess Availability” means, for any period, the average daily Excess Availability for such period.

“Bank of America” means Bank of America, N.A. and its successors.

“Bank Products” means any services or facilities provided to any Loan Party by any Lender or any of its Affiliates (but excluding Cash Management Services) on account of, without limitation, (a) Hedging Agreements, (b) purchase cards, and (c) leasing.

“Bank Product Reserves” means such reserves as the Administrative Agent from time to time determine in its discretion as being appropriate to reflect the liabilities and obligations of the Loan Parties with respect to Bank Products then provided or outstanding.

“Blocked Account Agreement” means with respect to an account established by a Loan Party, an agreement, in form and substance satisfactory to the Collateral Agent, establishing Control (as defined in the Security Agreement) of such account by the Collateral Agent and whereby the bank maintaining such account agrees, upon the occurrence and during the continuance of a Triggering Event, to comply only with the instructions originated by the Collateral Agent without the further consent of any Loan Party.

“Blocked Accounts” has the meaning set forth in Section 5.14(d).

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

“Borrowers” means the Company, Compass Foods, Inc., Shopwell, Inc., Waldbaum, Inc., Super Fresh Food Markets, Inc., Super Market Service Corp., Super Fresh/Sav-A-Center, Inc., Hopelawn Property I, Inc., Lo-Lo Discount Stores, Inc., Food Basics, Inc., Tradewell Foods of Conn., Inc., Pathmark Stores, Inc., APW Supermarkets, Inc., McLean Avenue Plaza Corp., Superplus Food Warehouse, Inc., Bridge Stuart Inc., East Brunswick Stuart LLC, Plainbridge LLC, Upper Darby Stuart, LLC, Bergen Street Pathmark, Inc., Lancaster Pike Stuart, LLC, AAL Realty Corp., and MacDade Boulevard Stuart, LLC.

“Borrowing” means (i) a group of Loans of the same Type, made, converted or continued on the same date and, in the case of LIBOR Loans, as to which a single Interest Period is in effect or (ii) a Swingline Loan.

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“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit B hereto (with such changes therein as may be required by the Administrative Agent to reflect the components of and reserves against the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as provided for hereunder from time to time), executed and certified as accurate and complete by a Financial Officer of the Company which shall include appropriate exhibits, schedules, supporting documentation, and additional reports (i) as outlined in Schedule 1 to Exhibit B and (ii) as reasonably requested by the Administrative Agent.

“Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.04.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Boston, Massachusetts or New York, New York are authorized or required by law to remain closed; provided that, when used in connection with a LIBOR Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Cash and Cash Equivalents” means:

(a)           Dollars;

(b)           securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality of the United States of America (provided that the full faith and credit of the United States of America is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;

(c)           obligations issued or fully guaranteed by any state of the United States of America or any political subdivision of any such state or province or any instrumentality thereof maturing within one year from the date of acquisition and having a rating of either “A” or better from S&P, A2 or better from Moody’s;

(d)           certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, banker’s acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any Lender or with any United States commercial bank having capital and surplus in excess of $300,000,000;

(e)           repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3), and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;

(f)            commercial paper rated at least “P-2” by Moody’s, at least “A-2” by S&P and in each case maturing within one year after the date of acquisition; and

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(g)           money market funds that are SEC.270.2a-7 compliant or enhanced cash funds having a weighted average maturity of not greater than 120 days.

“Cash Receipts” has the meaning set forth in Section 5.14(f).

“Cash Management Reserves “ means such reserves as the Administrative Agent, from time to time, determines in its discretion as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Cash Management Services then provided or outstanding.

“Cash Management Services” means any one or more of the following types or services or facilities provided to any Loan Party by any Lender or any of its Affiliates (a) ACH transactions, (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) foreign exchange facilities, and (d) credit or debit cards.

“Change in Control” means, at any time, (a) the board of directors of the Company shall cease to consist of a majority of the Continuing Directors, or (b) any person or group (within the meaning of Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended) other than a Permitted Holder shall acquire a majority of the voting power represented by the Company’s outstanding capital stock entitled to vote in the election of directors of the Company.

“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“Charges” has the meaning set forth in Section 9.13.

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

“Coinstar Advance Rate” means 85%.

“Coinstar Installation Agreements” means that certain Coinstar Installation Agreement, dated April 29, 2002 (as the same may be amended, supplemented and otherwise modified from time to time with the prior written consent of the Administrative Agent), between the Company and Coinstar, Inc., together with each other installation agreement between the Company (or any of its Subsidiaries) and Coinstar, Inc. in form and substance satisfactory to the Administrative Agent.

“Coinstar Notification” has the meaning set forth in Section 5.14(d).

“Coinstar Receivable” means each “Account” (as defined in the UCC ) together with all income, payments and proceeds thereof due and owing to the Company (or any of its Subsidiaries) by Coinstar, Inc., pursuant to any contract between the Company (or any of its

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Subsidiaries) and Coinstar, Inc., including but not limited to the Coinstar Installation Agreements.

“Collateral” means any and all “Collateral” or “Mortgaged Property”, as defined in any applicable Security Document.

“Collateral Agent” means Bank of America, N.A., in its capacity as collateral agent for the Secured Parties under the Security Documents.

“Commercial Letter of Credit” means any letter of credit or similar instrument (including, without limitation, banker’s acceptances) issued for the purpose of providing credit support in connection with the purchase of any materials, goods or services by a Borrower in the ordinary course of business of such Borrower.

“Commitment” means, with respect to each Lender, its Tranche A Commitment, its Tranche A-1 Commitment, its Term Commitment and its Term A-2 Commitment.

“Commitment Increase” has the meaning set forth in Section 2.02(a).

“Commitment Increase Date” has the meaning set forth in Section 2.02(c).

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

“Continuing Directors” means directors of the Company who are in office on the Effective Date and each other director, whose nomination for election to the board of directors of the Company is recommended by a majority of the then Continuing Directors or a Permitted Holder.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Convertible Notes” means collectively, the Company’s Convertible Senior Notes issued on December 18, 2007 in the aggregate principal amount of $420,000,000 to refinance the Bridge Financing Facility (as defined in the Existing Credit Agreement).  The Convertible Notes shall be deemed Indebtedness under this Agreement (and not Equity Interests) unless and until such securities are converted into or exchanged for shares of capital stock of the Company.

“Cost” means the cost of purchases as reported on the Borrowers’ stock ledger, based upon the Borrowers’ accounting practices, which practices are in effect on the Effective Date or thereafter consented to by the Administrative Agent.  “Cost” does not include inventory capitalization costs or other non-purchase price charges (such as deferred freight) used in the Borrowers’ calculation of cost of goods sold.

“Credit Card Notification” has the meaning set forth in Section 5.14(d).

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“Credit Card Receivables” means each “Account” (as defined in the UCC) together with all income, payments and proceeds thereof, owed by a major credit or debit card issuer (including, but not limited to, Visa, Mastercard and American Express and such other issuers approved by the Administrative Agent) to a Loan Party resulting from charges by a customer of a Loan Party on credit or debit cards issued by such issuer in connection with the sale of goods by a Loan Party, or services performed by a Loan Party, in each case in the ordinary course of its business.

“Credit Extension” mean (a) a Borrowing or (b) an L/C Credit Extension.

“Credit Party” or “Credit Parties” means (a) individually, (i) each Lender and its Affiliates, (ii) each Agent, (iii) the Issuing Bank, (iv) the Lead Arranger, (v) each beneficiary of each indemnification obligation undertaken by any Loan Party under any Loan Document, (vi) any other Person to whom Obligations under this Agreement and other Loan Documents are owing, and (vii) the successors and assigns of each of the foregoing, and (b) collectively, all of the foregoing.

“Currency and Commodity Hedging Agreement” means any foreign currency exchange agreement, commodity price protection agreement or other currency exchange rate or commodity price hedging arrangement.

“DDAs” means any checking, savings or other demand deposit account maintained by a Loan Party.

“DDA Notification” has the meaning set forth in Section 5.14(d).

“Declining Lender” has the meaning set forth in Section 2.11(p).

“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“Delinquent Lender” has the meaning set forth in Section 8.14(a).

“Disbursement Accounts” has the meaning set forth in Section 5.14(i).

“Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.

“Distribution Center Shrink Percentage” shall be applicable to Inventory located at the Distribution Centers and shall mean, at the end of each fiscal quarter, average shrink expressed in terms of cost value resulting from the physical inventories performed at each Distribution Center during the two (2) fiscal quarters ending on such date, expressed as a percentage of the cost value of Inventory.

“Distribution Center Shrink Reserve” shall be equal to the product of (a) the excess of the Distribution Center Shrink Percentage over 1%, multiplied by (b) Inventory at the Distribution Centers as of the date of the most recent Borrowing Base Certificate.

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“Distribution Centers” means (i) the warehouse facilities operated by the Loan Parties on the date hereof as set forth in Schedule B and (ii) any warehouse facility located in the United States and operated by Loan Parties that is designated as a Distribution Center by (a) giving 30 days prior written notice to the Administrative Agent and (b) effecting the execution, filing and recordation of such financing statements, the delivery of such Priority of Claims Waivers as required hereby and taking any and all such further actions as may be reasonably requested by the Administrative Agent.

“Dollars” and the symbol “$” mean the lawful currency of the United States.

“Effective Date” means December 3, 2007.

“Eligible Assignee” means (a) a Lender or any Affiliate of a Lender; (b) an Approved Fund; and (c) any other Person having a combined capital and surplus in excess of $500,000,000 approved by (i) the Administrative Agent, the Issuing Bank and the Swingline Lender, and (ii) unless an Event of Default has occurred and is continuing, the Company (each such approval under clauses (i) and (ii) not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include a natural person or a Loan Party or any of the Loan Parties’ Affiliates or Subsidiaries.

“Eligible Coinstar Receivables” means, at the time of any determination thereof, each Coinstar Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Coinstar Receivable (i) has been earned and represents the bona fide amounts due to the Company or another Loan Party from Coinstar, Inc. and in each case originated in the ordinary course of business of the Company or another Loan Party and (ii) is not ineligible for inclusion in the calculation of the Tranche A Borrowing Base or Tranche A-1 Borrowing Base pursuant to any of clauses (a) through (i) below.  Without limiting the foregoing, to qualify as Eligible Coinstar Receivable, an Account shall indicate no Person other than the Company or another Loan Party (other than an Excluded Subsidiary) as payee or remit tance party.  In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Company or another Loan Party, as applicable, may be obligated to rebate to a customer) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Company or another Loan Party to reduce the amount of such Coinstar Receivable.  Any Coinstar Receivables meeting the foregoing criteria shall be deemed Eligible Coinstar Receivables but only as long as such Coinstar Receivable is not included in any material respect within any of the following categories, in which case such Coinstar Receivable shall not constitute an Eligible Conistar Receivable:

(a)           such Coinstar Receivable is not owned by the Company or another Loan Party, (other than an Excluded Subsidiary) and the Company or another Loan Party (other than an Excluded Subsidiary) does not have good or marketable title to such receivable free and clear of any Lien of any Person other than the Collateral Agent;

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(b)           such Coinstar Receivable does not constitute an “Account” (as defined in the UCC) or such receivables have been outstanding for more than ten (10) Business Days;

(c)           either the Company (or the applicable Loan Party) or Coinstar, Inc. is the subject of any bankruptcy or insolvency proceedings;

(d)           such Coinstar Receivable is not a valid, legally enforceable obligation of Coinstar, Inc.;

(e)           such Coinstar Receivable is not subject to a properly perfected first priority security interest in favor of the Collateral Agent, or is not in form and substance reasonably satisfactory to the Administrative Agent, or is subject to any Lien whatsoever (other than the Lien of the Collateral Agent);

(f)            such Coinstar Receivable otherwise does not conform to all representations, warranties, covenants and agreements in the Loan Documents relating to receivables;

(g)           Coinstar, Inc. has not received the Coinstar Notification in accordance with the provisions of Section 5.14(d);

(h)           such Coinstar Receivable does not meet such other usual and customary eligibility criteria for receivables as the Administrative Agent may determine from time to time in its commercially reasonable discretion; or

(i)            such Coinstar Receivable is evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Collateral Agent, and to the extent necessary or appropriate, endorsed to the Collateral Agent.

“Eligible Credit Card Accounts Receivable” means at the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned and represents the bona fide amounts due to the Company or another Loan Party from a credit card payment processor and/or credit card issuer, and in each case originated in the ordinary course of business of the Company and the related Loan Party and (ii) is not ineligible for inclusion in the calculation of the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base pursuant to any of clauses (a) through (j) below.  Without limiting the foregoing, to qualify as an Eligible Credit Card Accounts Receivable, an Account shall indicate no Person other than the Comp any or the related Loan Party (other than an Excluded Subsidiary) as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Company or the related Loan Party, as applicable, may be obligated to rebate to a customer, a credit card payment processor, or credit card issuer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Company or the related Loan Party to reduce the amount of such Credit Card Receivable.  Any Credit Card Receivables meeting the foregoing criteria shall be deemed Eligible Credit Card Receivables but only as long as such

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Credit Card Receivable is not included in any material respect within any of the following categories, in which case such Credit Card Receivable shall not constitute an Eligible Credit Card Receivable:

(a)           such Credit Card Receivable is not owned by a Loan Party (other than an Excluded Subsidiary) and such Loan Party does not have good or marketable title to such Credit Card Receivable free and clear of any Lien of any Person other than the Collateral Agent;

(b)           such Credit Card Receivable does not constitute an  “Account” (as defined in the UCC) or such Credit Card Receivable has been outstanding for more than seven (7) business days;

(c)           the issuer or payment processor of the applicable credit card with respect to such Credit Card Receivable is the subject of any bankruptcy or insolvency proceedings;

(d)           such Credit Card Receivable is not a valid, legally enforceable obligation of the applicable issuer with respect thereto;

(e)           such Credit Card Receivable is not subject to a properly perfected first priority security interest in favor of the Collateral Agent, or is not in form and substance reasonably satisfactory to the Administrative Agent, or is subject to any Lien whatsoever other than Permitted Encumbrances contemplated by the credit card processor agreements and for which appropriate reserves (as determined by the Administrative Agent) have not been established or maintained by the Borrowers;

(f)            the Credit Card Receivable does not conform to all representations, warranties or other provisions in the Loan Documents relating to Credit Card Receivables;

(g)           such Credit Card Receivable is owed by a Person that has not received a Credit Card Notification in accordance with the provisions of  Section 5.14(d);

(h)           such Credit Card Receivable is subject to risk of set-off, non-collection or not being processed due to unpaid and/or accrued credit card processor fee balances, limited to the lesser of the balance of Credit Card Receivable or unpaid credit card processor fees;

(i)            such Credit Card Receivable is evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Collateral Agent, and to the extent necessary or appropriate, endorsed to the Collateral Agent; or

(j)            such Credit Card Receivable does not meet such other usual and customary eligibility criteria for Credit Card Receivables as the Administrative Agent may determine from time to time in its commercially reasonable discretion.

“Eligible Inventory” means, at the time of any determination thereof the Inventory of the Company or a Loan Party at the time of such determination that is not ineligible for inclusion in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base pursuant to any of the clauses (a) through (o) below.  Without limiting the foregoing, to qualify as Eligible Inventory no Person other than the Company or a Loan Party (other than an Excluded Subsidiary) shall

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have any direct or indirect ownership, interest or title to such Inventory and no Person other than the Company or a Loan Party (other than an Excluded Subsidiary), shall be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein.  Any Inventory meeting the foregoing criteria shall be deemed Eligible Inventory but only as long as such Inventory is not included in any material respect within any of the following categories, in which case such Inventory shall not constitute an Eligible Inventory:

(a)           it is located at a reclamation center of any Distribution Center or is otherwise held at any Distribution Center for return to vendor;

(b)           it is supplies, packaging, selling or display materials;

(c)           it is produce, floral, seafood, meat, bakery, dairy, deli, or fuel (provided that fuel in an aggregate amount not to exceed $1,000,000 may be deemed eligible inventory for purposes of calculating the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base);

(d)           it is not owned solely by the Company or any other Loan Party or is owned by an Excluded Subsidiary;

(e)           it is on consignment to the Company or any other Loan Party;

(f)            it is not located at property that is owned or leased by the Company or any other Loan Party or is in transit from vendors to such a property; provided that (I) Inventory in third party storage facilities located in jurisdictions other than Priming Jurisdictions shall, if not otherwise excluded, be included as Eligible Inventory, minus any claims or Liens, other than Permitted Encumbrances, that vendors, landlords, public warehouse operators or any third party bailee may have against such property, from time to time, and (II) Inventory located in Priming Jurisdictions shall not be included in Eligible Inventory pursuant to this paragraph (f) unless either (A) the applicable vendor, landlord, public warehouse or any third party bailee has provided to the related Loan Party a Priority of Claims Waiver in form and substance reasonably satisfactory to the Administrative Agent, or (B)(i) the Borrowers have deposited with the Collateral Agent collateral consisting of Cash and Cash Equivalents an amount equal to the Reserve for Leasehold Obligations (as applicable) with respect to such property or (ii) the Administrative Agent has established an appropriate Reserve for Leasehold Obligations, or (C) Borrowers’ obligations to such vendor, landlord, public warehouse or third party bailee are supported by a standby letter of credit issued by a Lender pursuant to this Agreement in an amount at least equal to the Reserve for Leasehold Obligations;

(g)           it is not located in the United States of America;

(h)           it is not subject to a perfected first priority Lien in favor of the Collateral Agent securing the Obligations, regardless of its location, other than Permitted Encumbrances;

(i)            it (i) is damaged, defective, “seconds,” or otherwise unmerchantable, (ii) is to be returned to the vendor, (iii) is not in good condition, (iv) does not meet all standards imposed by any Governmental Authority having regulatory authority over it, or (v) is not currently saleable in the normal course of business of the Company and the Subsidiaries;

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(j)            it is inventory located at any Distribution Center on such date that represents over 13 weeks old inventory based on date of receipt determined at an individual product level (provided that such inventory shall be eligible for purposes of calculating the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base to the extent of fifty percent (50%) of the book value thereof);

(k)           it is Inventory that is accounted for in both the Company’s Distribution Center and Store Inventory;

(l)            it includes any profits or transfer price additions charged or accrued in connection with transfers of Inventory between the Company and its Subsidiaries or Affiliates;

(m)          it is accounted for in the Store Shrink Reserve;

(n)           it is accounted for in the Distribution Center Shrink Reserve; or

(o)           it is accounted for in the Company’s reserve which adjusts Inventory valued under the Company’s historical retail method of accounting to actual cost value (product mix) or adjusts Inventory for unallocated earned allowances (net costing).

“Eligible Leaseholds” means any Real Estate meeting in all material respects the following criteria:

(a)           A Loan Party (other than an Excluded Subsidiary) is the lessee under a Lease for such Real Estate, the terms and conditions of which are reasonably satisfactory to the Administrative Agent;

(b)           Without limiting the provisions of clause (a), above, the Lease may be mortgaged and collaterally assigned to the Collateral Agent without the prior consent of the lessor (or if consent is required, such consent has been obtained on terms and conditions reasonably satisfactory to the Administrative Agent);

(c)           Unless waived by the Administrative Agent, the Lease contains customary estoppels, cure rights, and other provisions protecting a leasehold mortgagee’s interests in the Lease as the Administrative Agent may determine in its commercially reasonable discretion or if not contained therein, such provisions have been included in a landlord agreement in form and substance reasonably satisfactory to the Administrative Agent.  Notwithstanding the foregoing, all Leases upon which the Collateral Agent obtains a Mortgage on the Effective Date shall be deemed to have satisfied this requirement;

(d)           The Loan Parties shall not be in default of the terms of the Lease and no event shall have occurred, or solely with the passage of time, giving of notice or both, would permit the lessor to terminate the Lease;

(e)           The Collateral Agent shall have received evidence that all actions that the Collateral Agent may reasonably deem necessary or appropriate in order to create valid first and subsisting Liens (subject only to those Liens permitted by Section 6.02 hereof which have

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priority over the Lien of the Collateral Agent by operation of Applicable Law or otherwise reasonably acceptable to the Administrative Agent) on the leasehold interest has been taken;

(f)            The Administrative Agent shall have received an appraisal (based upon Appraised Value) of such leasehold interest complying with the requirements of FIRREA by a third party appraiser reasonably acceptable to the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent; and

(g)           The Real Estate Eligibility Requirements have been satisfied.

“Eligible Real Estate” means any Real Estate meeting in all material respects the following criteria:

(a)           A Loan Party (other than an Excluded Subsidiary) owns such Real Estate in fee simple absolute;

(b)           The Administrative Agent shall have received evidence that all actions that the Administrative Agent may reasonably deem necessary or appropriate in order to create valid first and subsisting Liens (subject only to those Liens permitted by Section 6.02 hereof which have priority over the Lien of the Collateral Agent by operation of Applicable Law or otherwise reasonably acceptable to the Administrative Agent) on the property described in the Mortgages has been taken.

(c)           The Administrative Agent shall have received an appraisal (based upon Appraised Value) of such Real Estate complying with the requirements of FIRREA by a third party appraiser reasonably acceptable to the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent; and

(d)           The Real Estate Eligibility Requirements have been satisfied.

“Eligible Third Party Insurance Provider Accounts Receivable” means, at the time of any determination thereof, each third party insurance provider “Account” (as defined in the UCC) together with all income, payments and proceeds thereof, that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Account (i) has been earned and submitted for reimbursement to, and represents the bona fide amounts due to the Company or other Loan Party (other than an Excluded Subsidiary) from, a third party insurance provider, in each case originated in the ordinary course of business of the Company or the related Loan Party and (ii) is not ineligible for inclusion in the calculation of the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base pursuant to any of clauses (a) through (p)&nbs p;below.  Without limiting the foregoing, to qualify as an Eligible Third Party Insurance Provider Accounts Receivable, a third party insurance provider account receivable shall indicate no Person other than the Company or the related Loan Party (other than an Excluded Subsidiary) as payee or remittance party.  In determining the amount to be so included, the face amount of such an account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Company or the

21

related Loan Party, as applicable, may be obligated to rebate to a third party insurance provider pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Company or the related Loan Party to reduce the amount of such Account.  All third party insurance provider accounts receivable meeting the foregoing criteria shall be deemed Eligible Third Party Insurance Provider Accounts Receivable but only as long as such third party insurance provider account receivable is not included in any material respect within any of the following categories, in which case such third party insurance provider account receivable shall not constitute an Eligible Third Party Insurance Provider Accounts Receivable:

(a)           an invoice (in form and substance satisfactory to the Administrative Agent) with respect to such third party insurance provider accounts receivable has not been sent to the applicable account debtor;

(b)           such third party insurance provider accounts receivable does not constitute an  “Account” (as defined in the UCC);

(c)           such third party insurance provider accounts receivable are not due and payable in full, or are subject to any bill and hold arrangement, or more than 90 days have elapsed since the date of the sale of goods giving rise to such third party insurance provider accounts receivable;

(d)           the aggregate amount of accounts due from third party insurance providers exceeds Fifteen Million Dollars ($15,000,000) for which more than 60 days but not more than 90 days have elapsed since the date of the sale of goods or rendering of services giving rise to such third party insurance provider accounts receivable;

(e)           such third party insurance provider accounts receivable did not arise from the provision of goods authorized by a physician’s prescription, and such goods have been performed or provided;

(f)            such third party insurance provider accounts receivable arose from the provision of durable medical equipment;

(g)           such third party insurance provider accounts receivable (i) are not owned by a Loan Party and such Loan Party does not have good or marketable title to such third party insurance provider accounts receivable or (ii) are owned by an Excluded Subsidiary;

(h)           such third party insurance provider accounts receivable are subject to any assignment, claim, lien, or security interest, except in favor of the Administrative Agent and the Lenders;

(i)            such third party insurance provider accounts receivable are not subject to a properly perfected first priority security interest in favor of the Collateral Agent, or is not in form and substance reasonably satisfactory to the Administrative Agent, or is subject to any Lien whatsoever other than Permitted Encumbrances and for which appropriate reserves (as determined by the Administrative Agent) have not been established or maintained by the Borrowers;

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(j)            such third party insurance provider accounts receivable are not valid and legally enforceable obligations of the account debtor, are with recourse, or are subject to any claim for credit, defense, offset, chargeback, counterclaim or adjustment by the account debtor (other than any discount allowed for prompt payment and reconciliations in the ordinary course of business), and the assignment or pledging thereof violates any agreement to which the account debtor is subject;

(k)           such third party insurance provider accounts receivable did not arise in the ordinary course of business of the Company and its Subsidiaries, or a notice of the bankruptcy, insolvency, failure, or suspension or termination of business of the account debtor has been received by the Company or the related Loan Party, or the payor thereunder shall have provided written notice to anyone of a challenge or dispute of its obligations thereunder;

(l)            such third party insurance provider accounts receivable do not conform to all representations, warranties or other provisions of the Loan Documents relating to such third party insurance provider accounts receivable;

(m)          such third party insurance provider accounts receivable are obligations payable under Medicare, Medicaid or any other governmental program or the related account debtor is any unit of government;

(n)           such third party insurance provider accounts receivable is owed by a Person that has not received an Insurance Provider Notification in accordance with the provisions of Section 5.14(d);

(o)           such third party insurance provider accounts receivable do not meet other usual and customary eligibility criteria for third party insurance provider accounts receivable, including the payors thereunder, as determined by the Administrative Agent in its commercially reasonable discretion; or

(p)           such third party insurance provider accounts receivable is evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Collateral Agent, and to the extent necessary or appropriate, endorsed to the Collateral Agent.

“Environmental Compliance Reserve” means, with respect to Eligible Real Estate and Eligible Leaseholds, any reserve which the Agents, from time to time in their discretion establish for estimable amounts that are reasonably likely to be expended by any of the Loan Parties in order for such Loan Party and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with Environmental Laws, or (b) to correct any such non-compliance with Environmental Laws or to provide for any Environmental Liability.

“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the pollution or protection of the environment or the preservation or reclamation of natural resources, including those relating to

23

the management, release or threatened release of any Hazardous Material, or to employee health and safety matters.

“Environmental Liability” means any liability, obligation, damage, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense or cost, contingent or otherwise (including any liability for costs of environmental remediation, or natural resource damages, administrative oversight costs, and indemnities), of the Company or any Subsidiary arising under any Environmental Law resulting from or based upon (a) compliance or noncompliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract or agreement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, as to any Person, all of the authorized shares of capital stock of (or other ownership or profit interests in) such Person, including all classes of common and preferred capital stock, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, membership or trust interests therein), rights to receive distributions of cash and other property, and to receive allocations of items of incom e, gain, loss, deduction and credit and similar items from such Person, whether voting or nonvoting, whether or not such interests include rights entitling the holder thereof to exercise control over such Person, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice r elating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or

24

partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“Event of Default” has the meaning set forth in Section 7.01.

“Excess Amount” has the meaning set forth in Section 2.06(d).

“Excess Availability” means, as of any date of determination thereof by the Administrative Agent, the result, if a positive number, of:

(a)           The lesser of:

(i)            the Tranche A-1 Borrowing Base (or if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base); or

(ii)           the Aggregate Commitments;

minus

(b)           The aggregate of the outstanding Credit Extensions.

In calculating Excess Availability at any time and for any purpose under this Agreement, the Company shall certify to the Administrative Agent that all accounts payable and Taxes are being paid on a timely basis and consistent with past practices (absent which the Administrative Agent may establish a reserve therefor).

“Exchange Act Filings” means all filings made by the Company pursuant to the Securities and Exchange Act of 1934, and the rules promulgated thereunder, since and including the annual report of the Company on Form 10-K for the fiscal year ended immediately prior to the date as of which representation and warranty is made or deemed to be made hereunder.

“Excluded Subsidiary” means each Subsidiary of the Company which (a) is affected by any event or circumstance referred to in any of Sections 7.01 (h), (i), (j), or (p) and (b) meets all the following conditions: (i) the Company’s direct and indirect investments in and advances to the Subsidiary is less than 1% of the total assets of the Company consolidated as of the end of the most recently completed fiscal year; (ii) the Company’s direct and indirect proportionate share of the total assets (after intercompany eliminations) of the Subsidiary is less than 1% of the total assets of the Company consolidated as of the end of the most recently completed fiscal year; and (iii) the Company’s direct and indirect equity in the income from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principle of the Subsidiary is less than 1% of such income of the Company consolidated for the most recently completed fiscal year; provided that, (A) all Excluded Subsidiaries shall be considered to be a single consolidated Subsidiary for purposes of determining whether the conditions specified in clauses (i), (ii) and (iii) above are satisfied and (ii) a Subsidiary shall not be an Excluded Subsidiary if such Subsidiary holds rights under any long-term contracts for the

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purchase of inventory accounting for more than 5% of the total inventory purchased by the Company and its Subsidiaries during the most recently completed four fiscal quarters.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender (including for this purpose the Issuing Bank) or any other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes imposed on (or measured by) its net income, profits or overall gross income or receipts, and franchise or similar taxes, imposed by the United States of America, by a jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or by any other jurisdiction with which the recipient has or had any other present or former connection (other than a connection arising solely from entering into, performing its obligations under, receiving a payment under or enforcing this Agreement or the other Loan Documents), ( b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any jurisdiction described in clause (a) above, (c) in the case of a Non-U.S. Lender, any withholding tax that is imposed on amounts payable to such Non-U.S. Lender (A) pursuant to a Tax law in effect on the date such Non-U.S. Lender becomes a party hereto or a Participant through the purchase of a participation hereunder, the date such Non-U.S. Lender designates a new Lending Office, or, with respect to any additional position in any Obligation acquired after such Non-U.S. Lender becomes a party hereto, the date such additional position was acquired by such Non-U.S. Lender, or (B) is attributable to such Non-U.S. Lender’s failure or inability (other than as a result of a Change in Law occurring after the date such Non-U.S. Lender becomes a party to this Agreement, a Participant through the purchase of a participation hereunder, or with respect to any additional position in any Obli gation acquired after such Non-U.S. Lender becomes a party hereto, the date such additional position was acquired by such Non-U.S. Lender) to comply with Section 2.17(e), except, in each case described in clause (A) or (B), to the extent that such Non-U.S. Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office, assignment or acquisition of such additional position in any Obligation (as applicable), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.17, and (d) any U.S. federal, state or local backup withholding tax.

“Executive Order” has the meaning set forth in Section 9.15.

“Existing Credit Agreement” has the meaning set forth in the recitals hereto.

“Existing Letters of Credit” means each of the Letters of Credit issued by a Lender and outstanding on the Effective Date, as listed on Schedule 1.01(A).

“Exposure” means, at any time, the aggregate principal amount, without duplication, of outstanding Loans, Swingline Exposure, and L/C Exposure at such time. The Exposure of any Lender at any time shall be the sum of, without duplication, its L/C Exposure, plus its Swingline Exposure, plus the aggregate principal amount of its outstanding Loans at such time.

“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if

26

such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Financial Officer” of any corporation means the chief financial officer, principal accounting officer, treasurer, controller or any vice president-finance, vice-president-financial services or vice-president -treasury services of such corporation.

“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.

“Foreign Assets Control Regulations” has the meaning set forth in Section 9.15.

“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.

“Fund” shall mean any person that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“GAAP” means generally accepted accounting principles in the United States of America.

“Governmental Authority” means the government of the United States of America, any other nation or 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.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condi tion or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee by a person shall be deemed to be an amount equal to the stated amount or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof

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(assuming such person is required to perform thereunder) as determined by such person in good faith.

“Guaranty” means the Guaranty among the Loan Parties and the Administrative Agent dated the Effective Date, substantially in the form of Exhibit C.

“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“HBA” means health and beauty aids.

“Hedging Agreement” means any Currency and Commodity Hedging Agreement or Interest Rate Hedging Agreement.

“Immaterial Subsidiaries” means the Subsidiaries of the Company listed on Schedule 1.01(D), which the Company intends to dissolve, liquidate or merge into another Loan Party.

“Incremental Availability” means, at any time of calculation, the additional amount available to be borrowed by the Borrowers based upon the difference between the Tranche A-1 Borrowing Base and the Tranche A Borrowing Base as reflected on the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent pursuant to Section 5.01(f) hereof.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid (excluding current accounts payable in the ordinary course of business), (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on prope rty owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Taxes” means Taxes, other than Excluded Taxes or Other Taxes, imposed on any payment by or on account of any obligation of the Borrowers hereunder or under any other Loan Document.

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“Indemnitee” has the meaning set forth in Section 9.03(b).

“Indemnity, Subrogation and Contribution Agreement” means the Indemnity, Subrogation and Contribution Agreement among the Loan Parties party thereto and the Collateral Agent dated as of the Effective Date, substantially in the form of Exhibit D.

“Information” has the meaning set forth in Section 9.12.

“Insurance Provider Notification” has the meaning set forth in Section 5.14(d).

“Interest Election Request” means a request by a Borrower to convert or continue a Borrowing in accordance with Section 2.08.

“Interest Payment Date” means (a) with respect to any ABR Loan (including any Swingline Loan) , the first Business Day of each calendar month and (b) with respect to any LIBOR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBOR Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

“Interest Period” means, with respect to any LIBOR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six (or to the extent available to all of the Lenders nine or twelve) months thereafter, as the Borrowers may elect, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the l ast Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“Interest Rate Hedging Agreement” means any interest rate protection agreement or other interest rate hedging arrangement.

“Inventory” means all products available for sale by the Company and the other Loan Parties in the following categories as defined and classified by the Company and the other Loan Parties on a basis consistent with the Company’s current and historical accounting practices: HBA, perishable, grocery, pharmacy, meat, seafood, produce, floral, bakery, deli, dairy, liquor, general merchandise and fuel, each valued at cost on a basis consistent with the current and historical accounting practices (without giving effect to LIFO reserves).

“Inventory Advance Rate” means 90%.

“Inventory Reserves” means such reserves as may be established from time to time by the Administrative Agent in its reasonable credit judgment as being appropriate to reflect changes in

29

the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as negatively affect the market value of the Eligible Inventory. Inventory Reserves shall not be duplicative of any factors taken into consideration in determining the Appraised Value of Inventory.

“Issuing Bank” means Bank of America, in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i); provided, that (i) the Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate; and (ii) with the consent of the Borrowers and the Administrative Agent, the Issuing Bank may arrange for one or more Letters of Credit to be issued by a Lender other than the Issuing Bank (or an Affiliate of such other Lender), in which case the term “Issuing Bank” shall include such Lender (or Affiliate of such Lender) with respect to Letters of Credit issued by such Lender (or Affiliate of such Lende r).  In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“L/C Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of Credit.

“L/C Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all L/C Disbursements made pursuant to Letters of Credit that have not yet been reimbursed by or on behalf of a Borrower at such time. The L/C Exposure of any Lender at any time shall mean its Applicable Percentage of the aggregate L/C Exposure at such time.

“Lead Arranger” means Banc of America Securities LLC.

“Lease” means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Loan Party is entitled to the use or occupancy of any real property for any period of time.

“Leasehold Advance Rate” means 40%.

“Leasehold Differential” means the difference between $300,000,000 (or such lesser amount to which the Administrative Agent in its reasonable discretion may agree, but in no event less than an amount which would maintain a loan to value based on such Eligible Leaseholds of 25%) and the Appraised Value of the then Eligible Leaseholds.

“Leasehold Obligations” means, with respect to each Loan Party, all payments made, if any, by such Loan Party with respect to rent (including fixed rent and variable rent), common area maintenance charges and other monetary obligations under any Lease (including any Distribution Center or Store) where any Inventory is stored or otherwise located.

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“Lender” means each Person listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance, other than any Person that ceases to be a Party hereto pursuant to an Assignment and Acceptance.

“Letter of Credit” means any letter of credit issued by the Issuing Bank for the account of a Borrower.  Without limiting the foregoing, all Existing Letters of Credit shall be deemed to have been issued hereunder and shall for all purposes be deemed to be “Letters of Credit” hereunder.

“Letter of Credit Fee “ has the meaning set forth in Section 2.12(c).

“Letter of Credit Sublimit” means an amount equal to $400,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Tranche A Commitments. A permanent reduction of the Aggregate Revolving Commitments or the Tranche A Commitments shall not require a corresponding pro rata reduction in the Letter of Credit Sublimit; provided, however, that if the Aggregate Revolving Commitments or the Tranche A Commitments are reduced to an amount less than the Letter of Credit Sublimit, then the Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Company’s option, less than) the Aggregate Revolving Commitments or the Tranche A Commitments, as applicable.

“LIBOR” means, when used in reference to any Loan or Borrowing, whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“LIBO Rate” means for any Interest Period with respect to a LIBO Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the a pproximate amount of the LIBO Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

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“Loan” means all Tranche A Loans, Tranche A-1 Loans, the Term Loan, the Term A-2 Loan. Swingline Loans, and all other advances to or for the account of the Borrowers pursuant to this Agreement.

“Loan Documents” means this Agreement, the Guaranty, the Indemnity, Subrogation and Contribution Agreement, all Borrowing Base Certificates, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications, the Security Documents, and any other instrument or agreement now or hereafter executed and delivered in connection herewith, or in connection with any transaction arising out of any Cash Management Services and Bank Products provided by the Administrative Agent or any of its Affiliates, each as amended and in effect from time to time.

“Loan Parties” means each of the Company, the other Borrowers and each other Subsidiary identified as a “Loan Party” on Schedule 3.12 and each Subsidiary made a party hereto pursuant to Section 5.12.

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under any Loan Document, (c) the rights of or benefits available to the Lenders under any Loan Document or (d) the Collateral as a whole.

“Material Contract” means any agreement to which any Loan Party is a party, the termination of which would have a Material Adverse Effect, including, without limitation, as of the Effective Date, the Supply Agreement, dated as of June 27, 2005 by and between the Company and C&S Wholesale Grocers, Inc., as the same may be amended or replaced from time to time.

“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the Company and its Subsidiaries in an aggregate principal amount exceeding $10,000,000 (or its equivalent). For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Company or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

“Maturity Date” means December 3, 2012.

“Maximum Rate” has the meaning set forth in Section 9.13.

“Merger” means the transactions contemplated by the Merger Agreement.

“Merger Agreement” means the Agreement and Plan of Merger dated as of March 4, 2007 by and among the Company, Sand Merger Corp. and Pathmark Stores, Inc., as in effect on the Effective Date.

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“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Mortgage(s)” means each and every fee and leasehold mortgage or deed of trust, security agreement and assignment by and between the Loan Party owning or holding the leasehold interest in the Real Estate encumbered thereby in favor of the Collateral Agent.  Each Mortgage shall be substantially in the form of Exhibit Q-1 or Exhibit Q-2, as applicable, with such modifications as may be appropriate to reflect Applicable Law of the jurisdiction in which the Real Estate is located.

“Mortgage Policies” has the meaning specified in the definition of Real Estate Eligibility Requirements.

“Multiemployer Plan” or “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Net Proceeds” means, with respect to any event (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any non-cash proceeds, but only as and when received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid by the Company and the Subsidiaries to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made by the Company and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by a Lien superior to that of the Collateral Agent on such asset, (iii) as long as no Triggering Event then exists, the amount of all taxes paid (or reasonably estimated to be payable) by the Company and the Subsidiaries, and the amount of any reserves established by the Company and the Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by the chief financial officer of the Company), (iv) all amounts deposited in trust or escrow for the benefit of any third party or to which any third party may be entitled in connection with such event, provided that any such amounts returned to the Company or any Subsidiary shall constitute Net Proceeds when received and (v) the reasonable costs and expenses of any repairs, alterations, or improvements made by the Company or any Sub sidiary to the assets subject to such event to the extent such repairs, alterations or improvements were required or permitted pursuant to the terms of any Lease or this Agreement.

“Noncompliance Notice “ has the meaning set forth in Section 2.05(b).

“Non-U.S. Lender” means a Lender or a Participant that is organized under the laws of a jurisdiction other than the United States of America, any state thereof or the District of Columbia.

“Obligations” has the meaning set forth in the Security Agreement.

“Other Liabilities” means any obligations on account of (a) any Cash Management Services furnished to any of the Loan Parties or any of their Subsidiaries and/or (b) any Bank

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Product entered into with any Loan Party or any of its Subsidiaries, as each may be amended from time to time.

“Other Taxes” means any and all present or future recording, stamp, documentary, excise, or similar taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document; provided, however, that any such taxes imposed on any assignment of the Obligations, any Assignment and Acceptance Agreements or any sales of participations in the Obligations pursuant to Section 9.04(d), and any estate, gift or inheritance taxes shall not constitute “Other Taxes.”

“PACA” means the Perishable Agricultural Commodities Act of 1930, as amended.

“PACA/PASA Liability Reserve” means an amount calculated on a monthly basis by the Collateral Agent to provide for vendor liabilities pursuant to PACA and PASA.

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

“Participant” has the meaning set forth in Section 9.04(d).

“PASA” means the Packers and Stockyard Act, 1921 and all regulations promulgated thereunder, as amended from time to time.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Perfection Certificate” means a certificate substantially in the form of Exhibit E or any other form reasonably approved by the Administrative Agent.

“Permitted Divestitures” means:

(a)           the Federal Trade Commission divestitures as publicly disclosed by the Company on or before the Effective Date;

(b)           the sale of the Falcon 900 Aircraft;

(c)           the sale of the leasehold interests as announced on August 14, 2007 by Pathmark; and

(d)           the sale of SAV-A-CENTER supermarkets in the Greater New Orleans area.

“Permitted Encumbrances” means:

(a)           liens imposed by law for Taxes, assessments and governmental charges or claims that are not yet delinquent or are being contested in compliance with Section 5.05;

(b)           carriers’, landlord’s, warehousemen’s, mechanics’, materialmen’s and repairmen’s liens, statutory liens of banks and rights of set-off and other Liens imposed by law,

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arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.05;

(c)           pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations and deposits securing liability to insurance carriers under insurance arrangements;

(d)           deposits to secure the performance of bids, tenders, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e)           judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.01(k);

(f)            easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;

(g)           encumbrances on assets disposed or to be disposed in a Permitted Divestiture created by an agreement(s) providing for such Permitted Divestiture or encumbrances on assets disposed or to be disposed permitted by Section 6.05 created by an agreement(s) providing for such disposition;

(h)           any (i) interest or title of lessor or sublessor under any Lease, (ii) easement, restriction or encumbrance to which the interest or title of such lessor or sublessor may be subject to or (iii) subordination of the interest of the lessee or sublessees under such Lease to any restriction or encumbrance referred to in the preceding clause (ii);

(i)            Liens arising from filing Uniform Commercial Code financing statements relating solely to Leases; and

(j)            encumbrances referred to in Schedule B of the Mortgage Policies insuring the Mortgages;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

“Permitted Holder” means (i) Tengelmann Warenhandelsgesellschaft or (ii) any Affiliate of  Tengelmann Warenhandelsgesellschaft.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were

35

terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Pledge Agreement” means the Pledge Agreement among the Loan Parties party thereto and the Collateral Agent dated as of the Effective Date, substantially in the form of Exhibit F.

“Prepayment Date” has the meaning set forth in Section 2.11(p).

“Prepayment Event” means:

(a)           any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of the Company or any Subsidiary, other than (i) dispositions described in clauses (a) and (b) of Section 6.05, and (ii) prior to the occurrence of a Triggering Event, other dispositions resulting in aggregate Net Proceeds not exceeding $20,000,000 during any fiscal year of the Company; or

(b)           any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Company or any Subsidiary, but, prior to the occurrence of a Triggering Event (i) only to the extent that the Net Proceeds therefrom have not been applied to repair, restore or replace such property or asset within 180 days after such event and (ii) only to the extent the value of such loss is in excess of $1,000,000 (or its equivalent); or

(c)           the incurrence by the Company or any Subsidiary of any Indebtedness, other than Indebtedness permitted by Section 6.01.

“Prepayment Premium” means one percent (1%) of the principal amount of the Term A-2 Loan prepaid during the twelve month period after the Restatement Effective Date.

“Prescription Advance Rate” means 85%.

“Prime Rate” means the rate of interest per annum publicly announced from time to time by Bank of America, N.A. as its prime rate in effect at its principal office in Charlotte, North Carolina; each change in the Prime Rate shall be effective on the date such change is publicly announced as being effective.

“Priming Jurisdiction” means any jurisdiction listed on Schedule A hereto, which schedule may be revised by the Administrative Agent to reflect changes in Applicable Law.  The Administrative Agent shall provide the Company with ten (10) days’ prior written notice of any revisions to the jurisdictions listed on Schedule A hereto.

“Principal Properties” means, (a) initially, the Real Estate described on Schedule 1.01(C), provided that such Schedule may be updated by the Company to the extent necessary to eliminate Real Estate which, after the Effective Date, is determined by the Company and the Administrative Agent to no longer to be a “Principal Property” under any agreement evidencing Material Indebtedness, and (b) any other Real Estate which is determined by the Company and the Administrative Agent after the Effective Date to have been a “Principal Property” as of the Effective Date under any agreement evidencing Material Indebtedness.

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“Priority of Claims Waiver” means an agreement executed by (a) a bailee or other Person in possession of Collateral, including, without limitation, any warehouseman substantially in the form of Exhibit P-2 hereto with such modifications thereto as may be approved by the Collateral Agent or such other agreement reasonably satisfactory in form and substance to the Collateral Agent, or (b) a landlord of Real Estate leased by any Loan Party (including, without limitation, any warehouse or distribution center), substantially in the form of Exhibit P-1 hereto with such modifications thereto as may be approved by the Collateral Agent or such other agreement reasonably satisfactory in form and substance to the Collateral Agent pursuant to which such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral, (ii) releases or s ubordinates such Person’s Liens in the Collateral held by such Person or located on such Real Estate, (iii) agrees to furnish the Collateral Agent with access to the Collateral in such Person’s possession or on the Real Estate for the purposes of assembling, repossessing, selling or otherwise disposing of such Collateral and (iv) makes such other agreements with the Collateral Agent as the Collateral Agent may reasonably require.

“Qualified Preferred Stock” means, with respect to any Person, any preferred capital stock or preferred equity interest that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event does not (a) mature or becomes mandatorily redeemable prior to the Maturity Date, pursuant to a sinking fund obligation or otherwise; (b) become convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock that is not Qualified Preferred Stock, prior to the Maturity Date; or (c) become redeemable at the option of the holder thereof, in whole or in part, prior to the Maturity Date.

“Real Estate” means all Leases and all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.

“Real Estate Advance Rate” means 50%.

“Real Estate Eligibility Requirements: means collectively, each of the following:

(a)           The applicable Loan Party has executed and delivered to the Collateral Agent a Mortgage with respect to any Real Estate intended, by the Company or other Loan Party, to be included in Eligible Real Estate or Eligible Leaseholds;

(b)           Such Real Estate is used by a Loan Party (other than an Excluded Subsidiary), or is leased or subleased by a Loan Party (other than an Excluded Subsidiary) to another Person, for offices or as a store or distribution center;

(c)           As to any particular property, the Loan Party is in compliance in all material respects with the representations, warranties and covenants set forth in the Mortgage relating to such Real Estate;

(d)           The Collateral Agent shall have received fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or marked-up title insurance commitments having the effect of a policy of title insurance) (the “Mortgage

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Policies”) in form and substance, with the endorsements set forth on Schedule 1.01(B) hereto (to the extent available at commercially reasonable rates) and in amounts reasonably acceptable to the Collateral Agent (provided that such amounts shall not exceed the Appraised Value of the applicable Mortgaged Property), issued, coinsured and reinsured (to the extent required by the Collateral Agent) by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property or leasehold interests described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only those Liens permitted by Section 6.02 having priority over the Lien of the Collateral Agent under Applicable Law or ot herwise reasonably acceptable to the Collateral Agent;

(e)           With respect to any Real Estate owned by a Borrower or any other Loan Party (as opposed to interests as lessee under a Lease) which is intended by such Borrower or such other Loan Party to be included in Eligible Real Estate, within ninety (90) days after the Effective Date (or such later date, if any, as the Administrative Agent may agree in writing in its sole discretion), the Collateral Agent shall have received American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid,  certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and r easonably acceptable to the Collateral Agent, showing all buildings and other improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Collateral Agent;

(f)            With respect to any leased Real Estate intended by any Borrower or other Loan Party to be included in Eligible Leaseholds, the Collateral Agent shall have received a consent agreement to the extent required under the terms of the applicable Lease or Title Policy relating to such leased Real Estate, in form and substance reasonably satisfactory to the Collateral Agent, executed by the lessor of the Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable Lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary, in the Collateral Agent’s reasonable judgment, to give constructive notice to thir d-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or sub-leased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Collateral Agent;

(g)           With respect to any Real Estate intended by any Borrower or other Loan Party to be included in Eligible Real Estate, the Collateral Agent shall have received a Phase I Environmental Site Assessment in accordance with ASTM Standard E1527-05, in

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form and substance reasonably satisfactory to the Collateral Agent, from an environmental consulting firm reasonably acceptable to the Collateral Agent, which report shall identify recognized environmental conditions and shall to the extent possible quantify any related costs and liabilities, associated with such conditions and the Collateral Agent shall be satisfied with the nature and amount of any such matters. The Collateral Agent may, upon the receipt of a Phase I Environmental Site Assessment require the delivery of further environmental assessments or reports to the extent such further assessments or reports are recommended in the Phase I Environmental Site Assessment; and

(h)           The applicable Loan Party shall have delivered to the Collateral Agent evidence of flood insurance naming the Collateral Agent as mortgagee as required by the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended and in effect, which shall be reasonably satisfactory in form and substance to the Collateral Agent.

“Realty Reserves” means such reserves as the Administrative Agent from time to time determines in the Administrative Agent’s discretion as being appropriate to reflect the impediments to the Agents’ ability to realize upon any Eligible Real Estate or Eligible Leaseholds. Without limiting the generality of the foregoing, Realty Reserves may include (but are not limited to) (i) Environmental Compliance Reserves, (ii) reserves for (A) municipal taxes and assessments, (B) repairs and (C) remediation of title defects, and (iii) reserves for Indebtedness secured by Liens having priority over the Lien of the Collateral Agent.

“Receivables Advance Rate” means 90%.

“Register” has the meaning set forth in Section 9.04(c).

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Required Lenders” means, at any time, Lenders having Exposure and unused Commitments representing greater than 50% of the sum of all Exposure and unused Commitments at such time; provided that until such time as a “Successful Syndication” (as defined in a certain letter agreement between, among others, the Administrative Agent and the Company) has occurred, Required Lenders shall include at least three Lenders.

“Reserve for Leasehold Obligations” means, on any date, the aggregate amount of Leasehold Obligations of the Loan Parties due and owing with respect to properties of a vendor, landlord, public warehouse operator or other third party bailee located in a Priming Jurisdiction  or at a distribution center at which more than $5,000,000 of Inventory is located, in each case which is not subject to a Priority of Claims Waiver in form and substance satisfactory to the Administrative Agent; for each such property the amount of Leasehold Obligations shall be the next two months’ Leasehold Obligations (net of any Letter of Credit amount benefiting such landlord in respect of such Leasehold Obligations). For the avoidance of doubt, the amount of Leasehold Obligations for any property for which a satisfactory Priority of Claims Waiver is

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delivered by a vendor, landlord, public warehouse operator or other third party bailee, shall be zero.

“Restatement Effective Date” means December     , 2007 (the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02)).

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Company or any option, warrant or other right to acquire any such Equity Interests in the Company.

“S&P” means Standard & Poor’s Ratings Service, a Division of The McGraw-Hill Companies, and its successors.

“Script Advance Rate” means 85%.

“Scripts” means the pharmaceutical customer list owned and controlled by each Loan Party relating to certain items and services, including, without limitation, any drug price data, drug eligibility data, clinical drug information and health information of a pharmaceutical customer that is not protected under Sections 1171 through 1179 of the Social Security Act or other Applicable Law.

“Secured Parties” has the meaning set forth in the Security Agreement.

“Security Agreement” means the Security Agreement among the Loan Parties party thereto and the Collateral Agent dated as of the Effective Date, substantially in the form of Exhibit G.

“Security Documents” means the Security Agreement, the Pledge Agreement, the Mortgages and each other security agreement or other instrument or document executed and delivered by any Loan Party to secure any of the Obligations.

“Solvent” means, with respect to any Person on a particular date, that on such date (a) at fair valuations, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, and (e) such Person is not engaged in a busines s or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged. The amount of all Guarantees and contingent obligations at any time shall be computed as the amount that, in light

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of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability.

“Specified Default” means the occurrence and continuance of an Event of Default under Section 7.01 (a), (b), (c) (only with respect to a Borrowing Base Certificate delivered pursuant to Section 5.01(f)), (h) or (i) or Section 7.01(d) (in the case of the failure of the Loan Parties to comply with (x) Section 5.01(f) (after giving effect to a five (5) day grace period relating thereto or such longer time, if any, as the Administrative Agent may agree in writing in its sole discretion), (y) Section 5.14 (other than Section 5.14(d) to the extent the Administrative Agent has approved an extension relating to the applicable delivery requirements therein) or (z) Section 6.12).

“Standby Letter of Credit” means Letter of Credit other than a Commercial Letter of Credit.

“Stated Amount” means at any time the maximum amount for which a Letter of Credit may be honored.

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D of the Board.  LIBOR Loans shall be deemed to constitute Eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D of the Board or any comparable regulatio n. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Store Shrink Percentage” shall be applicable to Inventory located at Stores and shall mean, as of any date, the amount of loss recorded in accordance with GAAP of the grocery and HBA inventories expressed as a percentage of the grocery and HBA sales for the most recently ended two (2) fiscal quarters.

“Store Shrink Reserve” shall be equal to the product of (a) the excess of the Store Shrink Percentage over 1%, multiplied by (b) the Inventory of the Company and the other Loan Parties as of the date of the most recent Borrowing Base Certificate.

“Stores” means all supermarket retail locations of the Company and other Loan Parties selling Inventory owned by the Loan Parties.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the

41

equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Swingline Exposure” means, at any time, the aggregate amount of all outstanding Swingline Loans at such time. The Swingline Exposure of any Lender at any time shall mean its Applicable Percentage of the aggregate Swingline Exposure at such time

“Swingline Lender” means Bank of America, N.A., in its capacity as Lender of Swingline Loans hereunder.

“Swingline Loan” means a Loan made by the Swingline Lender to the Borrowers pursuant to Section 2.05.

“Swingline Sublimit” means an amount equal to $50,000,000.  The Swingline Sublimit is part of, and not in addition to, the Aggregate Tranche A Commitments.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings or similar charges imposed by any Governmental Authority.

“Term Applicable Percentage” means with respect to any Term Lender at any time, the percentage (carried out to the fourth decimal place) of the outstanding principal balance of such Term Lender’s Term Loan at such time to the Aggregate Term Outstandings at such time.  The initial Term Applicable Percentage of each Term Lender is set forth opposite the name of such Term Lender on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Term Lender becomes a party hereto, as applicable.

“Term Commitment” means, with respect to each Term Lender, the commitment of such Term Lender hereunder set forth as its Term Commitment opposite its name on Schedule 2.01 hereto.

“Term Lender” means each Lender having a Term Commitment as set forth on Schedule 2.01 hereto or in the Assignment and Acceptance by which it becomes a Term Lender, or after the making of the Term Loan, each Lender holding any portion of the Term Loan.

“Term Loan” means the term loan made by the Term Lenders on the Effective Date pursuant to Section 2.01(b) of the Existing Credit Agreement.

“Term Prepayment Conditions” means that (a) no Default or Event of Default then exists or would arise from the prepayment of the Term Loan or Term A-2 Loan, as applicable, and (b) the Company shall deliver to the Agent either (i) an opinion as to Solvency of the Loan Parties before and after giving effect to such prepayment, which opinion shall be in form and substance acceptable to the Agent and rendered by a Person acceptable to the Agent or (ii) evidence that Excess Availability (A) on the date of any such prepayment and (B) projected on a pro forma basis for the following twelve months shall be in an amount greater than $150,000,000.

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“Term A-2 Applicable Percentage” means with respect to any Term A-2 Lender at any time, the percentage (carried out to the fourth decimal place) of the outstanding principal balance of such Term A-2 Lender’s Term A-2 Loan at such time to the Aggregate Term A-2 Outstandings at such time.  The initial Term A-2 Applicable Percentage of each Term A-2 Lender is set forth opposite the name of such Term A-2 Lender on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Term A-2 Lender becomes a party hereto, as applicable.

“Term A-2 Commitment” means, with respect to each Term A-2 Lender, the commitment of such Term A-2 Lender hereunder set forth as its Term A-2 Commitment opposite its name on Schedule 2.01 hereto.

“Term A-2 Leasehold Cap” means, subject to the provisions of Section 5.13(b), (a) during the period commencing on the Restatement Effective Date and ending on and including August 31, 2009, $50,000,000, (b) commencing on September 1, 2009 and ending on November 30, 2009, $25,000,000, and (c) at any time after December 1, 2009, $0.

“Term A-2 Lender” means each Lender having a Term A-2 Commitment as set forth on Schedule 2.01 hereto or in the Assignment and Acceptance by which it becomes a Term A-2 Lender, or after the making of the Term A-2 Loan, each Lender holding any portion of the Term A-2 Loan.

“Term A-2 Loan” means the term loan to be made by the Term A-2 Lenders on the Restatement Effective Date pursuant to Section 2.01(c).

“Trading With the Enemy Act” has the meaning set forth in Section 9.15.

“Tranche A Applicable Percentage” means with respect to any Tranche A Lender at any time, the percentage (carried out to the fourth decimal place) of the Aggregate Tranche A Commitments represented by such Tranche A Lender’s Tranche A Commitment at such time.  If the commitment of each Tranche A Lender to make Tranche A Loans and the obligation of the Issuing Bank to make L/C Credit Extensions have been terminated pursuant to Section 2.09(a) or if the Aggregate Tranche A Commitments have expired, then the Tranche A Applicable Percentage of each Lender shall be determined based on the Tranche A Applicable Percentage of such Tranche A Lender most recently in effect, giving effect to any subsequent assignments.  The initial Tranche A Applicable Percentage of each Tranche A Lender is set forth opposite the name of such Tranche A Lender on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Tranche A Lender becomes a party hereto, as applicable.

“Tranche A Borrowing Base” means, on any date (subject to adjustment as provided in Section 1.05), the aggregate value of the assets of the Loan Parties, in an amount (calculated based on the most recent Borrowing Base Certificate delivered to the Administrative Agent in accordance with Section 5.01(f), absent any error in such Borrowing Base Certificate) that is equal to:

(a)           the product of (x) the Inventory Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) Appraised Value of Eligible Inventory (subject to the

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provisions of clause (j) of the definition of Eligible Inventory) and (z) the Cost of Eligible Inventory (net of Inventory Reserves); plus

(b)           the product of (x) the Receivables Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of all Eligible Credit Card Accounts Receivables; plus

(c)           subject to the proviso hereto, the product of (x) the Script Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of Scripts; plus

(d)           the product of (x) Coinstar Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of Eligible Coinstar Receivables; plus

(e)           the product of (x) Prescription Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of all Eligible Third Party Insurance Provider Accounts Receivables; plus

(f)            subject to the proviso hereto, the product of (x) Real Estate Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of all Eligible Real Estate (other than Eligible Real Estate constituting the Principal Properties); plus

(g)           subject to the proviso hereto, the product of (x) Real Estate Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of all Eligible Real Estate constituting the Principal Properties; plus

(h)           subject to the proviso hereto, during the period commencing on the Restatement Effective Date and ending on and including May 31, 2009, the lesser of (x) the Tranche A Leasehold Cap and (y) the product of (i) the Leasehold Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Eligible Leaseholds; plus

(i)            the lesser of (A) the Additional Availability Amount, or (B) the aggregate outstanding principal balance of the Term A-2 Loan; minus

(j)            the then amount of all Availability Reserves (without duplication of any Inventory Reserves included in the calculation set forth in clause (a) above;

provided, however, that in no event shall (a) the amounts advanced against Scripts exceed twenty percent (20%) of the total amount advanced or available to be advanced under the Tranche A Borrowing Base, (b) the aggregate amounts advanced against Eligible Real Estate (including the

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Principal Properties) and Eligible Leaseholds (including amounts available against such Eligible Real Estate and Eligible Leaseholds under clause (i) above) exceed thirty-six percent (36%) of the total amount advanced or available to be advanced under Tranche A Borrowing Base, and (c) the aggregate amounts advanced against Eligible Leaseholds under clauses (h) and (i), above exceed the Leasehold Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Eligible Leaseholds; and provided further that, the Company may at any time, without consent or approval from the Agents or the Lenders, permanently terminate its right to receive Credit Extensions under both the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base based o n Eligible Leaseholds as long as (x) no Default or Event of Default then exists or would arise therefrom, and (y) no overadvance would result from the removal of Eligible Leaseholds from the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base.

The Tranche A Borrowing Base shall be computed for each fiscal month as required by and subject to the proviso after Section 5.01(f), and established based upon the most recent Borrowing Base Certificate delivered to the Administrative Agent and shall remain in effect until the delivery to the Administrative Agent of a subsequent Borrowing Base Certificate.

“Tranche A Commitment” means, with respect to each Tranche A Lender, the commitment of such Lender hereunder set forth as its Tranche A Commitment opposite its name on Schedule 2.01 hereto or as may subsequently be set forth in the Register from time to time, as the same may be reduced from time to time pursuant to the terms of this Agreement.

“Tranche A Leasehold Cap” means, subject to the provisions of Section 5.13(b), (a) during the period commencing on the Restatement Effective Date and ending on and including February 28, 2009, $50,000,000, (b) commencing on March 1, 2009 and ending on May 31, 2009, $25,000,000, (c) at any time after June 1, 2009, $0.

“Tranche A Lender” means each Lender having a Tranche A Commitment as set forth on Schedule 2.01 hereto or in the Assignment and Acceptance by which it becomes a Tranche A Lender.

“Tranche A Loans” has the meaning set forth in Section 2.01.

“Tranche A Unused Fee” has the meaning set forth in Section 2.12(b).

“Tranche A-1 Applicable Percentage” means with respect to any Tranche A-1 Lender at any time, the percentage (carried out to the fourth decimal place) of the Aggregate Tranche A-1 Commitments represented by such Tranche A-1 Lender’s Tranche A-1 Commitment at such time.  If the commitment of each Tranche A-1 Lender to make Tranche A-1 Loans and the obligation of the Issuing Bank to make L/C Credit Extensions have been terminated pursuant to Section 2.09(c) or if the Aggregate Tranche A-1 Commitments have expired, then the Tranche A-1 Applicable Percentage of each Lender shall be determined based on the Tranche A-1 Applicable Percentage of such Tranche A-1 Lender most recently in effect, giving effect to any subsequent assignments. The initial Tranche A-1 Applicable Percentage of each Tranche A-1 Lender is set forth opposite the name of such Tranche A-1 Lender on Schedule 2.01 or in the

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Assignment and Acceptance pursuant to which such Tranche A-1 Lender becomes a party hereto, as applicable.

“Tranche A-1 Borrowing Base” means, on any date (subject to adjustment as provided in Section 1.05), the aggregate value of the assets of the Loan Parties, in an amount (calculated based on the most recent Borrowing Base Certificate delivered to the Administrative Agent in accordance with Section 5.01(f), absent any error in such Borrowing Base Certificate) that is equal to:

(a)           the product of (x) the Tranche A-1 Inventory Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) Appraised  Value of Eligible Inventory (subject to the provisions of clause (j) of the definition of Eligible Inventory) and (z) the Cost of Eligible Inventory (net of Inventory Reserves); plus

(b)           the product of (x) the Receivables Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of all Eligible Credit Card Accounts Receivables; plus

(c)           subject to the proviso hereto, the product of (x) the Script Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of Scripts; plus

(d)           the product of (x) Coinstar Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of Eligible Coinstar Receivables; plus

(e)           the product of (x) Tranche A-1 Prescription Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the face amount of all Eligible Third Party Insurance Provider Accounts Receivables; plus

(f)            subject to the proviso hereto, the product of (x) Tranche A-1 Real Estate Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of all Eligible Real Estate (other than Eligible Real Estate constituting the Principal Properties); plus

(g)           subject to the proviso hereto, the product of (x) Tranche A-1 Real Estate Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (y) the Appraised Value of all Eligible Real Estate constituting the Principal Properties; plus

(h)           subject to the proviso hereto, during the period commencing on the Restatement Effective Date and ending on and including November 30, 2009, the lesser of (x) the Tranche A Leasehold Cap and (y) the product of (i) the Leasehold Advance Rate (or such lesser rate as

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determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordance with Section 1.05) and (ii) the Appraised Value of all Eligible Leaseholds; plus

(i)            the lesser of (A) the Additional Availability Amount, or (B) the aggregate outstanding principal balance of the Term A-2 Loan; minus

(j)            the then amount of all Availability Reserves (without duplication of any Inventory Reserves included in the calculation set forth in clause (a) above);

provided, however, that in no event shall (a) the amounts advanced against Scripts exceed twenty percent (20%) of the total amount advanced or available to be advanced under the Tranche A-1 Borrowing Base (b) the aggregate amounts advanced against Eligible Real Estate (including the Principal Properties) and Eligible Leaseholds (including amounts available against such Eligible Real Estate and Eligible Leaseholds under clause (i) above) exceed thirty-six percent (36%) of the total amount advanced or available to be advanced under the Tranche A-1 Borrowing Base, and (c) the aggregate amounts advanced against Eligible Leaseholds under clauses (h) and (i), above, exceed the Leasehold Advance Rate (or such lesser rate as determined from time to time by the Administrative Agent in its commercially reasonable discretion in accordan ce with Section 1.05) and (ii) the Appraised Value of all Eligible Leaseholds, and provided further that, the Company may at any time, without consent or approval from the Agents or the Lenders, permanently terminate its right to receive Credit Extensions under both the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base based on Eligible Leaseholds as long as (x) no Default or Event of Default then exists or would arise therefrom, and (y) no overadvance would result from the removal of Eligible Leaseholds from the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base.

The Tranche A-1 Borrowing Base shall be computed for each fiscal month as required by and subject to the proviso after Section 5.01(f), and established based upon the most recent Borrowing Base Certificate delivered to the Administrative Agent and shall remain in effect until the delivery to the Administrative Agent of a subsequent Borrowing Base Certificate.

“Tranche A-1 Commitment” shall mean, with respect to each Tranche A-1 Lender, the commitment of such Tranche A-1 Lender hereunder set forth as its Tranche A-1 Commitment opposite its name on Schedule 2.01 hereto or as may subsequently be set forth in the Register from time to time, as the same may be reduced from time to time pursuant to this Agreement.

“Tranche A-1 Inventory Advance Rate means 95%.

“Tranche A-1 Lender” means each Lender having a Tranche A-1 Commitment as set forth on Schedule 2.01 hereto or in the Assignment and Acceptance by which it becomes a Tranche A-1 Lender.

“Tranche A-1 Loans” has the meaning set forth in Section 2.01.

“Tranche A-1 Prescription Advance Rate” means 90%.

“Tranche A-1 Real Estate Advance Rate” means 60%.

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“Tranche A-1 Unused Fee” has the meaning set forth in Section 2.12(b).

“Transactions” means, collectively, the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the borrowing of Loans, the use of the proceeds thereof, and the issuance of Letters of Credit hereunder.

“Triggering Event” means the notification from the Administrative Agent to the Company that either (a) any Event of Default has occurred or (b) Excess Availability at any time is less than $75,000,000.  Upon the occurrence of a Triggering Event, such Triggering Event shall be deemed “continuing” until such time as the applicable Event of Default is waived or Excess Availability shall exceed $75,000,000 for thirty (30) consecutive days; provided, however, that the foregoing cure provision may only be exercised once in any six (6) month period, and provided, further, that the foregoing cure provision may  only be exercised five (5) times during the term of the Loans.

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect on the date of determination in the applicable jurisdiction.

“Unused Fee” has the meaning set forth in Section 2.12(b).

“Waivable Prepayment” has the meaning set forth in Section 2.11(p).

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., an “ABR Loan” or a “LIBOR Loan”). Borrowings also may be classified and referred to by Type (e.g., an “ABR Borrowing” or a “LIBOR Borrowing”).

SECTION 1.03 Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set fort h herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and

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Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and (f) unless otherwise stated herein, all provisions herein within the discretion or to the satisfaction of a party shall be deemed to include a standard of reasonableness, good faith and fair dealing.

SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until su ch notice shall have been affirmatively withdrawn by the Company (or, in the case of a request for an amendment under this Section by the Required Lenders, the Administrative Agent) or such provision amended in accordance herewith.

SECTION 1.05 Borrowing Base Adjustments. The Administrative Agent or the Required Lenders may, in their commercially reasonable discretion (x) in reviewing the collateral components of the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base, (y) after completion of any evaluation or any appraisal contemplated by Section 5.09(a) or Section 5.09(b) or (z) upon the occurrence and during the continuation of a Default, from time to time (a) decrease the advance rates for the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base (or both), (b) establish and revise reserves reducing the amount of Eligible Coinstar Receivables, Eligible Credit Card Accounts Receivable, Eligible Third Party Insurance Provider Accounts Receivable, Eligible Inventory, Eligible Leaseholds, Eligible Real Estate or Scripts and (c) impose additional el igibility criteria to be applicable to Eligible Coinstar Receivables, Eligible Credit Card Accounts Receivable, Eligible Third Party Insurance Provider Accounts Receivable, Eligible Inventory, Eligible Leaseholds, Eligible Real Estate or Scripts; provided that any such adjustment described in clause (a), (b) or (c) above shall be made only in the event that the Administrative Agent or the Required Lenders reasonably determine (based upon an evaluation or appraisal referred to in Section 5.09(a) or Section 5.09(b) or other objectively determinable facts or circumstances) that the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base Borrowing Base, or any component thereof, or its value as Collateral, is adversely affected by one or more events, conditions, contingencies or risks that are not already adequately reflected in the calculation of the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base (as applicable); and provided further that no ch ange will be made to the borrowing base standards pursuant to this Section 1.05 if such change would increase the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base in effect at any time above the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, as applicable, that would be in effect at such time if such Tranche A Borrowing Base or the Tranche A-1 Borrowing Base were calculated using the standards in effect on the date hereof or, if such standards have been amended pursuant to Section 9.02(b)(vi), using the standards as in effect on the date of such

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amendment.  The Administrative Agent will provide written notice to the Company of any adjustments made pursuant to this Section 1.05 on the date of such adjustments.

SECTION 1.06 Letter of Credit Amounts.  Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms of any documents related thereto, provides for one or more automatic increases in the Stated Amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time.

ARTICLE II
The Credits

SECTION 2.01 Loans; Mandatory Advances of Tranche A-1 Loans .

(a)           Subject to the terms and conditions set forth herein, (x) each Tranche A Lender severally agrees to make loans (each such loan, a “Tranche A Loan”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate principal amount not to exceed at any time outstanding the lesser of (i) the amount of such Lender’s Tranche A Commitment or (ii) such Lender’s Applicable Percentage of the Tranche A Borrowing Base and (y) each Tranche A-1 Lender severally agrees to make loans (each such loan, a “Tranche A-1 Loan”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate principal amount not to exceed at any time the lesser of (i) the amount such Lender’s Tranche A-1 Commitm ent, as applicable, or (y) such Lender’s Applicable Percentage of Incremental Availability; subject in each case to the following limitations:

(i)            after giving effect to any Borrowing, the total Exposure shall not exceed the lesser of (A) the Aggregate Commitments, or (B) the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base,

(ii)           after giving effect to any Borrowing, the aggregate outstanding principal  amount of the Tranche A Loans of any Tranche A Lender, plus such Lender’s Applicable Percentage of the outstanding L/C Exposure in respect of Letters of Credit, plus such Tranche A Lender’s Applicable Percentage of the outstanding principal amount of all Swingline Loans shall not exceed the lesser of (x) such Tranche A Lender’s Tranche A Commitment, or (y) such Tranche A Lender’s Applicable Percentage of (i) the Tranche A Borrowing Base, less (ii) the Aggregate Term Outstandings, less (iii) the Aggregate Term A-2 Outstandings,

(iii)          after giving effect to any Borrowing, the aggregate outstanding principal  amount of the Tranche A-1 Loans of any Tranche A-1 Lender, shall not exceed the lesser of (x) such Tranche A-1 Lender’s Tranche A-1 Commitment, or (y) such Tranche A-1 Lender’s Applicable Percentage of Incremental Availability,

(iv)          The L/C Exposure in respect of Letters of Credit shall not at any time exceed the Letter of Credit Sublimit,

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(v)           The aggregate outstanding principal amount of the Tranche A Credit Extensions shall not at any time exceed the Aggregate Tranche A Commitments; and

(vi)          The aggregate outstanding amount of the Tranche A-1 Credit Extensions shall not exceed the lesser of the Aggregate Tranche A-1 Commitments or Incremental Availability.

(b)           Subject to the terms and conditions set forth in the Existing Credit Agreement, each Term Lender severally made a term loan to the Borrowers on the Effective Date, in a principal amount equal to the then outstanding Term Commitment of each such Term Lender.

(c)           Subject to the terms and conditions set forth herein, each Term A-2 Lender severally agrees to make a term loan to the Borrowers on the Restatement Effective Date, in a principal amount not to exceed at any time outstanding the Term A-2 Commitment of each such Term A-2 Lender.  Proceeds of the Term A-2 Loans made pursuant to this Section 2.01(c) shall be applied first to the repayment of the principal amount of the then outstanding Tranche A Loans, and second, to the repayment of the principal amount of the then outstanding Tranche A-1 Loans.

(d)           Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.11, and, except with respect to the Term Loan and the Term A-2 Loan, reborrow under this Section 2.01.  Loans may be ABR Loans or LIBOR Loans, as further provided herein.

(e)           Except as otherwise provided in , all Credit Extensions under the Tranche A-1 Commitments shall be Tranche A-1 Loans and all Letters of Credit shall be issued under Tranche A Commitments.

(f)            Except as provided in Section 2.01(f), each Borrowing of Loans to the Borrowers (other than Swingline Loans) shall be made by the Lenders pro rata in accordance with their respective Tranche A Commitments, Tranche A-1 Commitments, or Term A-2 Commitments.  The failure of any Lender to make any Loan to the Borrowers shall neither relieve any other Lender of its obligation to fund its Loan to the Borrowers in accordance with the provisions of this Agreement nor increase the obligation of any other such Lender.

(g)           Notwithstanding anything to the contrary herein contained, no Borrowings of Tranche A Loans shall be made unless Tranche A-1 Loans are outstanding in an aggregate principal amount equal to the lesser of Incremental Availability or the then outstanding Tranche A-1 Commitments.  In that regard, all requests for Borrowings shall be deemed to be a request for a Tranche A-1 Loan until the outstanding Tranche A-1 Loans equal the lesser of (i) Incremental Availability and (ii) the then unfunded amount of the outstanding Tranche A-1 Commitments. Proceeds of any Tranche A-1 Loan made pursuant to this Section 2.01(f) shall be first applied to the repayment of the principal amount of the then outstanding Tranche A Loans, if any.

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SECTION 2.02 Increase in Tranche A Commitments

(a)           So long as no Default or Event of Default exists or would arise therefrom,  (i) the Company shall have the right, at any time from time to time after the Effective Date, to request an increase of the aggregate of the then outstanding Tranche A Commitments by an amount not to exceed in the aggregate $100,000,000.  Any such requested increase shall be first made to all existing Tranche A Lenders on a pro rata basis based on their respective Tranche A Applicable Percentages. At the time of sending such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within which each Tranche A Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Tranche A Lenders). Each Tranche A Lender shall noti fy the Administrative Agent within such time period whether or not it agrees to increase its Tranche A Commitment and, if so, whether by an amount equal to, greater than, or less than its Tranche A Applicable Percentage of such requested increase.  Any Tranche A Lender not responding within such time period shall be deemed to have declined to increase its Tranche A Commitment. To the extent that the existing Tranche A Lenders decline to increase their Tranche A Commitments, or decline to increase their Tranche A Commitments to the amount requested by the Company, the Administrative Agent, in consultation with the Company, will use its reasonable efforts to arrange for other Persons to become a Tranche A Lender hereunder and to issue commitments in an amount equal to the amount of the increase in the Tranche A Commitments requested by the Company and not accepted by the existing Tranche A Lenders (each such increase by either means, a “Commitment Increase,” and each Person issuing, or Tr anche A Lender increasing, its Commitment, an “Additional Commitment Lender”), provided, however, that (i) no Tranche A Lender shall be obligated to provide a Commitment Increase as a result of any such request by the Company, and (ii) any Additional Commitment Lender which is not an existing Tranche A Lender shall be subject to the approval of the Administrative Agent, the Issuing Bank and the Company (which approval shall not be unreasonably withheld).  Each Commitment Increase shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof.

(b)           No Commitment Increase shall become effective unless and until each of the following conditions have been satisfied:

(i)            The Additional Commitment Lender shall have executed and delivered a joinder to the Loan Documents, which shall have been consented to by the Administrative Agent and the Company, in substantially the form of Exhibit H hereto;

(ii)           The Borrowers shall deliver, or cause to be delivered, to the Administrative Agent a certificate of each Loan Party dated as of the Commitment Increase Date signed by a responsible officer of such Person (i) certifying and attaching the resolutions adopted by such Person approving or consenting to such increase, and (ii) in the case of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article III and the other Loan Documents are true and correct on and as of the Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Default or Event of Default exists.

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(iii)          The Borrowers shall have paid such fees and other compensation to the Additional Commitment Lenders and to the Administrative Agent as the Borrowers and the Administrative Agent or such Additional Commitment Lenders, as applicable, shall agree;

(iv)          The Borrowers shall deliver to the Administrative Agent and the Tranche A Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrowers reasonably satisfactory to the Administrative Agent and dated such date; and

(v)           The Borrowers and the Additional Commitment Lender shall have delivered such other instruments, documents and agreements as the Administrative Agent, may reasonably have requested in order to effectuate the documentation of the foregoing.

(c)           The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Commitment Increase (with each date of such effectiveness being referred to herein as a “Commitment Increase Date”), and at such time (i) the Tranche A Commitments, under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Commitment Increases, (ii) Schedule 2.01 shall be deemed modified, without further action,  to reflect the revised Tranche A Commitments of the Tranche A Lenders and (iii) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect such increased Tranche A Commitments.  The Borrowers shall prepay any Tranche A Loans outstanding on the Commitment Increase Date (and pay any  breakage costs and a dditional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Tranche A Loans ratable with any revised Tranche A Applicable Percentages arising from any nonratable increase in the Tranche A Commitments under this Section 2.02.

SECTION 2.03 Loans and Borrowings.

(a)           Each Loan shall be made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective Applicable Percentages. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)           Each Borrowing shall be denominated in Dollars and comprised entirely of ABR Loans or LIBOR Loans as the Borrowers may request in accordance herewith; provided that all Swingline Loans shall be ABR Loans. Each Lender at its option may make any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement and provided further, that the exercise of such option shall not result in an increase in additional amounts payable by the Borrowers pursuant to Section 2.17.

(c)           At the commencement of each Interest Period for any LIBOR Borrowing, such Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000

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and not less than $3,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $3,000,000; provided that an ABR Borrowing may be in an aggregate principal amount that is equal to the entire unused balance of Tranche A Commitments or Tranche A-1 Commitments, or the entire outstanding balance of the Term Loan or the Term A-2 Loan, as applicable, or that is required to finance the reimbursement of a L/C Disbursement as contemplated by Section 2.06(e). Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of ten (10) LIBOR Borrowings outstanding. For purposes of the foregoing, Loans having different Interest Periods, regardless of whether they commence on the same date, shall be deemed as made under se parate Borrowings.

(d)           Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

SECTION 2.04 Requests for BorrowingsTo request a Borrowing, the Company shall notify the Administrative Agent of such request by telephone (a) in the case of a LIBOR Borrowing, not later than 4:00 p.m., Boston, Massachusetts time, three Business Days before the date of the proposed Borrowing, or (b) in the case of an ABR Borrowing, not later than 2:00 p.m., Boston, Massachusetts time, on the day of the proposed Borrowing; provided that any such notice of an ABR Borrowing to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., Boston, Massachusetts time on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent o f a written Borrowing Request in a form approved by the Administrative Agent and signed by the Company. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.03:

(i)            the Borrower(s) on whose behalf the Company is requesting such Borrowing;

(ii)           the aggregate amount of such Borrowing;

(iii)          the date of such Borrowing, which shall be a Business Day;

(iv)          whether such Borrowing is to be an ABR Borrowing or a LIBOR Borrowing;

(v)           in the case of a LIBOR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

(vi)          the location and number of the Borrowers’ account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.

If no election as to the Type of Borrowing is specified with respect to a Borrowing in Dollars, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested LIBOR Borrowing, then the Borrowers shall be deemed to have selected

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an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each of the Lenders of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

SECTION 2.05 Swingline Loans.

(a)           During the Availability Period, the Swingline Lender is authorized by the Tranche A Lenders, and shall make Swingline Loans at any time (subject to Section 2.05(b)) to the Borrowers up to the amount of the sum of the Swingline Sublimit upon a notice of Borrowing from the Company received by the Administrative Agent and the Swingline Lender (which notice, at the Swingline Lender’s discretion, may be submitted prior to 3:00 p.m., Boston, Massachusetts time on the Business Day on which such Swingline Loan is requested).  Immediately upon the making of a Swingline Loan, each Tranche A Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the such Tranche A Lender’s Tranche A Applicable Percentage of the amount of such Swingline Loan.  Swingline Loans shall be ABR Loans and shall be subject to weekly settlement with the Tranche A Lenders.

(b)           The Company’s request for a Swingline Loan shall be deemed a representation that the applicable conditions for borrowing under Article IV are satisfied.  If the conditions for borrowing under Article IV cannot in fact be fulfilled, (x) the Company shall give immediate notice (a “Noncompliance Notice”) thereof to the Administrative Agent and the Swingline Lender, and the Administrative Agent shall promptly provide each Tranche A Lender with a copy of the Noncompliance Notice, and (y) the Required Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans until such conditions can be satisfied or are waived in accordance with Section 9.02. Unless the Required Lenders so direct the Swingline Lender, the Swingline Lender may, but is not obligated to, continue to make Swingline Loans commencing one (1) Business Day after the Noncompliance Notice is furnished to the Tranche A Lenders. Notwithstanding the foregoing, no Swingline Loans shall be made pursuant to this Section 2.05(b) if the aggregate outstanding amount of the Exposure would exceed the limitations set forth in Section 2.01.

(c)           Each Tranche A Lender’s obligation to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.05 shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Tranche A Lender may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.

SECTION 2.06 Letters of Credit.

(a)           General. Subject to the terms and conditions set forth herein, at any time and from time to time during the Availability Period, the Company may request the issuance of a Letter of Credit for the account of a Borrower, in a form appropriately completed and reasonably

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acceptable to the Administrative Agent and the Issuing Bank. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company or any Borrower to, or entered into by the Company or any Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Each Letter of Credit shall be denominated in Dollars.

(b)           Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day, the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Company or the applicable Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit. Following receipt of such notice and prior to the issuance of the requested Letter of Credit or the applicable amendment, renewal or extension, the Administrative Agent shall notify the Company and the Issuing Bank whether such Letter of Credit may be issued under this Agreement after giving effect to (i) the issuance, amendment, renewal or extension of such Letter of Credit, (ii) the issuance or expiration of any other Letter of Credit that is to be issued or will expire prior to the requested date of issuance of such Letter of Credit and (iii) the borrowing or repayment of any Loans that (base d upon notices delivered to the Administrative Agent by the Company or a Borrower) are to be borrowed or repaid prior to the requested date of issuance of such Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit, the Borrowers shall be deemed to represent and warrant that) such issuance, amendment, renewal or extension the total L/C Exposure shall not exceed $400,000,000, (2) the total Exposure shall not exceed the Aggregate Commitments and (3) the total Exposure of the Tranche A Lenders shall not exceed the lesser of the Aggregate Tranche A Commitments or the Tranche A Borrowing Base then in effect.

(c)           Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one (1) year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) unless cash collateralized or otherwise credit supported to the reasonable satisfaction of the Issuing Bank, the date that is five (5) Business Days prior to the Maturity Date. Each Letter of Credit may, upon the request of the Company include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but not beyond the date that is five (5) Business Days prior to the Maturity Date) unless the Issuing Bank notifies the beneficiary th ereof at least thirty (30) days prior to the then-applicable expiration date that such Letter of Credit will not be renewed; provided,

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however, that no Letter of Credit shall be renewed or extended on or after the occurrence of a Default or an Event of Default.

(d)           Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Tranche A Lender, and each such Tranche A Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Tranche A Lender’s Tranche A Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each such Tranche A Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Tranche A Lender’s Tranche A Applicable Percentage of each L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrowers on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrowers for any reason. If any L/C Exposure remains outstanding upon the termination of the Tranche A Commitments, to the extent the lesser of the Aggregate Tranche A-1 Commitments or Incremental Availability exceeds the Tranche A-1 Loans (the “Excess Amount”) upon such termination of the Tranche A Commitments, the Tranche A Lenders shall be deemed to have sold to each Tranche A-1 Lender, and each Tranche A-1 Lender shall be deemed unconditionally and irrevocably to have so purchased from the Tranche A Lenders, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche A-1 Lender’s Tranche A-1 Applicable Percentage in the lesser of such Excess Amount or such undivided interest and participation of each Tranche A Lender in the L/C Exposure, each drawing thereunder and the obligations of t he Borrowers under this Agreement and the other Loan Documents with respect thereto. Each Tranche A Lender and Tranche A-1 Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Tranche A Commitments or the Tranche A-1 Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)           Reimbursement. If the Issuing Bank in respect of a Letter of Credit shall make any L/C Disbursement in respect of such Letter of Credit, the Borrowers shall reimburse such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement (i) prior to the close of business, Boston, Massachusetts time, on the Business Day immediately following the day that such L/C Disbursement is made, if the Borrowers shall have received notice of such L/C Disbursement prior to 11:00 a.m., Boston, Massachusetts time, or (ii) if such notice has not been received by the Borrowers prior to 11:00 a.m., Boston, Massachusetts time, then prior to the close of business, Boston, Massachusetts time, on the second Business Day immediately following the day the Borrowers receive such notice; provided< /u> that, if such L/C Disbursement is not less than $1,000,000, the Borrowers may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.04 that such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting ABR Loan. If the Borrowers fail to make such payment when due, subject to the obligations of Tranche A-1 Lenders with respect to the Excess Amount, the Administrative Agent shall notify each Tranche A Lender of the applicable L/C Disbursement, the payment then

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due from the Borrowers in respect thereof and such Tranche A Lender’s Tranche A Applicable Percentage thereof.  Promptly following receipt of such notice, each such Tranche A Lender shall pay to the Administrative Agent its Tranche A Applicable Percentage of the payment then due from the Borrowers, in the same manner as provided in Section 2.07 with respect to Loans made by such Tranche A Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of such Tranche A Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from such Tranche A Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Tranche A Lenders have made payments pursuan t to this paragraph to reimburse the Issuing Bank, then to such Tranche A Lenders and the Issuing Bank as their interests may appear. Any payment made by a Tranche A Lender pursuant to this paragraph to reimburse the Issuing Bank for any L/C Disbursement (other than the funding of ABR Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of their obligation to reimburse such L/C Disbursement.

(f)            Obligations Absolute.  Each Borrower’s obligation to reimburse L/C Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to a Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each of the Borrowers to the extent permitted by Applicable Law) suffered by a Borrower that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Is suing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for

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further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g)           Disbursement Procedures.  The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrowers by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse the Issuing Bank and Lenders with respect to any such L/C Disbursement.

(h)           Interim Interest. If the Issuing Bank in respect of a Letter of Credit shall make any L/C Disbursement under such Letter of Credit, then, unless the Borrowers shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is due pursuant to paragraph (e) of this Section, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrowers reimburse such L/C Disbursement, at the rate per annum then applicable to ABR Loans; provided that, if the Borrowers fail to reimburse such L/C Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest acc rued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i)            Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Company, the Administrative Agent and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(c). From and after the effective date of any such replacement, (i) such successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” and the term “Issuing Bank” shall be deemed to refer t o such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

(j)            Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrowers shall deposit in an account with the Administrative Agent an amount in cash for the benefit of the Lenders, equal to the total L/C Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to

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any Borrower described in clause (h) or (i) of Section 7.01. The Borrowers also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.11(g) and Section 2.11(h).  Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Obligations of the Borrowers. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such accounts. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such accounts. Moneys in such accounts shall be (i) applied by the Administrative Agen t to reimburse the Issuing Bank for L/C Disbursements for which it has not been reimbursed and (ii), to the extent not so applied, held for the satisfaction of the reimbursement obligations of the Borrowers for their L/C Exposure at such time, or (iii) be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived. If the Borrowers are required to provide cash collateral other than as a result of an occurrence of an Event of Default hereunder, such amount (to the extent not applied as aforesaid) shall be promptly returned to the extent that, and following such time as, after giving effect to such return: (i) the total Exposure does not exceed the Aggregate Commitments, and (ii) th e total Exposure of the Tranche A Lenders does not exceed the lesser of the Aggregate Tranche A Commitments or the Tranche A Borrowing Base as then in effect and (iii) the total Exposure of the Tranche A-1 Lenders does not exceed the lesser of the Aggregate Tranche A-1 Commitments or Incremental Availability.

SECTION 2.07 Funding of Borrowings.

(a)           Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., Boston, Massachusetts time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make each such Loan available to the Borrowers by promptly crediting the amounts so received, in like funds, to an account of the Borrowers maintained with the Administrative Agent in Boston, Massachusetts and designated by the Company in the applicable Borrowing Request; provided that any ABR Loans made to finance the reimbursement of an L/C Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.

(b)           Each Borrowing of Tranche A Loans (other than Swingline Loans) shall be made by the Tranche A Lenders pro rata in accordance with their respective Tranche A Applicable Percentage; each Borrowing of Tranche A-1 Loans shall be made by the Tranche A-1 Lenders pro rata in accordance with their respective Tranche A-1 Applicable Percentage; and each Borrowing of Term A-2 Loans shall be made by the Term A-2 Lenders pro rata in accordance with their respective Term A-2 Applicable Percentage.  The failure of any Lender to make any Loan shall neither relieve any other Lender of its obligation to fund its Loan in accordance with the provisions of this Agreement nor increase the obligation of any such other Lender.

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(c)           Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Loan to be made by such Lender on the occasion of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then such Lender and the Borrowers jointly and severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (i) in the case of any Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrowers, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

SECTION 2.08 Interest Elections.

(a)           Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBOR Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrowers may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a LIBOR Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrowers may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b)           To make an election pursuant to this Section, the Company shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.04 if the Company were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Company.

(c)           Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.03 and Section 2.04:

(i)            the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

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(ii)           the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)          whether the resulting Borrowing is to be an ABR Borrowing or a LIBOR Borrowing; and

(iv)          if the resulting Borrowing is a LIBOR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

(d)           If any such Interest Election Request requests a LIBOR Borrowing but does not specify an Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one month’s duration.

(e)           Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each affected Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(f)            If the Company fails to deliver a timely Interest Election Request with respect to a LIBOR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

SECTION 2.09 Termination or Reduction of Commitments.

(a)           The Borrowers may, upon irrevocable notice from the Company to the Administrative Agent, terminate the Aggregate Tranche A Commitments, the Letter of Credit Sublimit or the Swingline Sublimit or from time to time permanently reduce the Aggregate Tranche A Commitments, the Letter of Credit Sublimit or the Swingline Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce (A) the Aggregate Tranche A Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the total Ex posure of the Tranche A Lenders would exceed the Aggregate Tranche A Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the L/C Exposure not fully cash collateralized in accordance with Section 2.06(j) hereunder would exceed the Letter of Credit Sublimit, and (C) the Swingline Sublimit if, after giving effect thereto, and to any concurrent payments hereunder, the outstanding principal amount of Swingline Loans hereunder would exceed the Swingline Sublimit.  In the event that the Tranche A Commitments are terminated in their entirety, the Tranche A-1 Commitments shall thereupon also be automatically terminated without any further action of the Loan Parties.

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(b)           If, after giving effect to any reduction of the Aggregate Tranche A Commitments, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the amount of the Aggregate Tranche A Commitments, such Letter of Credit Sublimit or Swingline Sublimit shall be automatically reduced by the amount of such excess.

(c)           The Borrowers may terminate the Aggregate Tranche A-1 Commitments in whole or in part, upon irrevocable notice from the Company to the Administrative Agent, if (i) at the time of such termination, (A) there are no outstanding Tranche A Loans and (B) Excess Availability is not less than twenty percent (20%) of the Tranche A Borrowing Base, and (ii) the Borrowers have demonstrated to the reasonable satisfaction of the Administrative Agent that Excess Availability, as projected on a pro-forma basis for the twelve (12) months following such payment, will be equal to or greater than twenty percent (20%) of the Tranche A Borrowing Base provided that any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction.  Each such reduction shall be in the principal amount of $5,000,000 or any integral multiple thereof. The Borrowers shall pay to the Administrative Agent for application as provided herein (i) at the effective time of any such termination (but not any partial reduction), all Unused Fees accrued on the Aggregate Tranche A-1 Commitments so terminated, and (ii) at the effective time of any such reduction or termination, any amount by which the Tranche A-1 Credit Extensions to the Borrowers outstanding on such date exceed the amount to which the Aggregate Tranche A-1 Commitments are to be reduced effective on such date.

(d)           The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, the Swingline Sublimit, the Aggregate Tranche A Commitments or the Aggregate Tranche A-1 Commitments under this Section 2.09. Upon any reduction of the Aggregate Tranche A Commitments, the Tranche A Commitment of each Tranche A Lender shall be reduced by such Tranche A Lender’s Tranche A Applicable Percentage of such reduction amount.  Upon any reduction of the Aggregate Tranche A-1 Commitments, the Tranche A-1 Commitment of each Tranche A-1 Lender shall be reduced by such Tranche A-1 Lender’s Tranche A-1 Applicable Percentage of such reduction amount.  All fees (including, without limitation, Unused Fees and Letter of Credit Fees) in respect of the Aggregate Revolving Commitments, as applicable, accrued until the effective date of any termination of such Commitments shall be paid on the effective date of such termination.

(e)           Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent.

(f)            On the Effective Date and the funding of the Term Loan, the Term Commitments of the Term Lenders terminated.

(g)           On the Restatement Effective Date and the funding of the Term A-2 Loan, the Term A-2 Commitments of the Term A-2 Lenders shall be terminated.

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(h)           To the extent that any Real Estate which constitutes a Principal Property on the Effective Date is reasonably determined by the Administrative Agent to no longer constitute a Principal Property, at the Company’s election, the Term Loan may be decreased by an amount equal to the Appraised Value of such Real Estate; provided that (i) the Aggregate Tranche A Commitments are increased by a corresponding amount (in which event the Tranche A Commitment of each Tranche A Lender shall be automatically be increased by an amount equal to its Tranche A Applicable Percentage of such increase in the Aggregate Tranche A Commitments) and (ii) the Mortgages and other Loan Documents are amended in form reasonably satisfactory to the Administrative Agent (A) to provide that such Real Estate secures all Obligations and (B) as may otherwise be reasonably required by the Administrative Agent to reflect that such Real Estate is no longer a Principal Property.  Any increase in the Aggregate Tranche A Commitments under this Section 2.09(h) shall in no way impair the rights of the Borrowers under Section 2.02 hereof.

(i)            To the extent that any Real Estate owned on the Effective Date which has been determined not to constitute a Principal Property on the Effective Date but is reasonably determined by the Administrative Agent after the Effective Date to have constituted a Principal Property on the Effective Date, at the Company’s election, the Term Loan may be increased by an amount equal to the Appraised Value of such Real Estate; provided that (i) the Tranche A Commitments are decreased by a corresponding amount (in which event the Tranche A Commitment of each Tranche A Lender shall be automatically be reduced by an amount equal to its Tranche A Applicable Percentage of such decrease in the Aggregate Tranche A Commitments), and (ii) the Mortgages and other Loan Documents are amended in form reasonably satisfactory to the Admini strative Agent (A) to provide that such Real Estate secures only the Term Loans and (B) as may otherwise be reasonably required by the Administrative Agent to reflect that such Real Estate is a Principal Property.

SECTION 2.10 Repayment of Loans; Evidence of Debt.

(a)           Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan made to the Borrowers and held by such Lender on the Maturity Date applicable to such Loan.

(b)           Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(c)           The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the respective Lenders and each respective Lender’s share thereof.

(d)           The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations

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recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay its Loans in accordance with the terms of this Agreement.

(e)           Any Lender may request that Loans made by it to any Borrower or Borrowers be evidenced by a promissory note. In such event, each of the Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.11 Prepayment of Loans.

(a)           Subject to the requirements of this Section and the payment of any amounts required under Section 2.16, each Borrower shall promptly prepay any Borrowing (or deposit such amounts) as may be required by this Agreement, together with any and all amounts required under Section 2.16.

(b)           The Borrowers may, upon irrevocable notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Tranche A Loans in whole or in part without premium or penalty.

(c)           In the event the all Tranche A Loans have been paid in full, the Borrowers may, upon irrevocable notice from the Company to the Administrative Agent, prepay the Tranche A-1 Loans in whole or in part without premium or penalty; provided, that no Default or Event of Default then exists or shall arise from such prepayment.

(d)           The Borrowers may, upon irrevocable notice from the Company to the Administrative Agent, prepay the Tranche A-1 Loans in whole or in part without premium or penalty in connection with the termination or reduction of the Tranche A-1 Commitments in accordance with Sections 2.09(a) and 2.09(c) hereof. Any such prepayment shall be subject to the notice provisions of Section 2.11(d).

(e)           The Borrowers may, upon irrevocable notice from the Company to the Swingline Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Company, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(f)            Except as provided in Section 2.09(h) and Section 2.09(i) hereof or unless the Term Prepayment Conditions are satisfied, the Borrowers may not prepay the Term Loan until all other Obligations have been paid in full in cash (other than contingent indemnification

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obligations for which no claim has then been asserted) and the Tranche A Commitments and the Tranche A-1 Commitments have been terminated.

(g)           Unless the Term Prepayment Conditions are satisfied, the Borrowers may not prepay the Term A-2 Loan until all other Obligations have been paid in full in cash (other than contingent indemnification obligations for which no claim has then been asserted) and the Tranche A Commitments and the Tranche A-1 Commitments have been terminated.  Any such prepayment shall be accompanied by the payment of the Prepayment Premium, if any is then due.

(h)           In the event and on such occasion that the total Exposure exceeds the lesser of the Aggregate Commitments or the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base), each as then in effect, each of the Borrowers shall promptly prepay Loans and/or cash collateralize the L/C Exposure in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to cash collateralize the L/C Exposure pursuant to this Section 2.11(h) unless after the prepayment in full of the Loans (other than the Term Loan and the Term A-2 Loan), the total Exposure exceeds the lesser of the Aggregate Commitments or the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowi ng Base), each as then in effect, provided further that the Borrowers shall not be required to prepay the Term Loan pursuant to this Section 2.11(h) unless after the prepayment in full of the Loans (other than the Term Loan and the Term A-2 Loan) and the cash collateralization of the L/C Exposure, the total Exposure exceeds the lesser of the Aggregate Commitments or the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base, each as then in effect, and provided further that the Borrowers shall not be required to prepay the Term A-2 Loan pursuant to this Section 2.11(h) unless after the prepayment in full of the Loans (other than the Term A-2 Loan) and the cash collateralization of the L/C Exposure, the total Exposure exceeds the lesser of the Aggregate Commitments or the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base), each as then in effect.

(i)            In the event and on such occasion that the total Exposure of the Tranche A Lenders exceeds the lesser of (A) the Aggregate Tranche A Commitments or (B)(i) the Tranche A Borrowing Base as then in effect, less (ii) the Aggregate Term Outstandings, less (iii) the Aggregate Term A-2 Outstandings, each of the Borrowers shall promptly prepay Tranche A Loans and/or cash collateralize the L/C Exposure in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to cash collateralize the L/C Exposure pursuant to this Section 2.11(i) unless after the prepayment in full of the Tranche A Loans, the total Exposure of the Tranche A Lenders exceeds the lesser of (x) the Aggregate Tranche A Commitments or (y)(i) the Tranche A Borrowing Base as then in effect, less (ii) the Aggregate Term Outstandings, less (iii) the Aggregate Term A-2 Outstandings.

(j)            At any time that any Loans are outstanding, in the event and on each occasion that any Net Proceeds are received by or on behalf of any Loan Party in respect of any Prepayment Event, including, without limitation, the Net Proceeds of any Permitted Divestiture, such Loan Party shall, within five Business Days after such Net Proceeds are received, prepay Borrowings

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in an aggregate amount equal to such Net Proceeds, provided that any Net Proceeds from the Principal Properties shall be applied solely to the Term Loan.

(k)           Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrowers shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to Section 2.11(l). Notwithstanding the foregoing provisions of this Section 2.11, if at any time the Borrowers are required to make a prepayment under this Section 2.11 and the Borrowers would incur breakage costs under Section 2.16 as a result of LIBOR Loans being prepaid other than on the last day of an Interest Period applicable thereto (the “Affected LIBOR Loans”), and provided that no Default has occurred and is continuing at the time, then the Borrowers may in their sole discretion initially deposit a portion (up to 100%) of the amounts that otherwise would have been pai d in respect of the Affected LIBOR Loans with the Administrative Agent (which deposit must be equal in amount to the amount of the Affected LIBOR Loans not immediately prepaid) to be held as security for such obligations of the Borrowers hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent and shall provide for investments in Cash and Cash Equivalents satisfactory to the Administrative Agent and the Company, with such cash collateral to be directly applied upon the first occurrence (or occurrences) thereafter of the last day of an Interest Period applicable to the relevant Loans that are LIBOR Loans (or such earlier date or dates as shall be requested by the Company), to repay an aggregate principal amount of such Loans equal to the Affected LIBOR Loans not initially prepaid pursuant to this sentence. Notwithstanding anything to the contrary contained in the immediately preceding sentence, all amounts deposited as cash collateral pursuant to the immediately preceding sentence shall be held for the sole benefit of the Lenders and may be applied to the prepayment of such Loans immediately if an Event of Default has occurred and is continuing.

(l)            The Company shall notify the Administrative Agent by telephone (confirmed by telecopy) of any prepayment (other than mandatory prepayments which shall be payable immediately when due without notice and prepayments of Swingline Loans) hereunder (i) in the case of prepayment of a LIBOR Borrowing, not later than 4:00 p.m., Boston, Massachusetts time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 2:00 p.m., Boston, Massachusetts time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that , if a notice of optional prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice, the Administrative Agent shall advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.03, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13.

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(m)          Each prepayment shall be applied to the applicable Loans of the applicable Lenders in accordance with their respective Applicable Percentages.

(n)           Subject to the provisions of Section 7.03, prepayments made pursuant to this Section 2.11 (other than paragraphs (c), (d), (e), (g) and (h) hereof and other than those made with the Net Proceeds of the Principal Properties), first, shall be applied ratably to the Swingline Loans, second, shall be applied ratably to the outstanding Tranche A Loans, third, shall be applied ratably to the outstanding Tranche A-1 Loans, and, fourth, if an Event of Default then exists, shall be used to cash collateralize the remaining L/C Exposure; fifth, shall, to the extent permitted or required in this Section 2.11, be applied ratably to the outstanding Term Loans, and, sixth, shall, to the extent permitted or required in this Section 2.11, be applied ratably to the outstanding T erm A-2 Loans, and, seventh, the amount remaining, if any, after the prepayment in full of all Loans outstanding at such time and the cash collateralization of the remaining L/C Exposure in full may be retained by the Borrowers for use in the ordinary course of its business.  Prepayments made pursuant to paragraphs (d) and (e) of this Section 2.11 first shall be applied ratably first to the outstanding Tranche A-1 Loans and then in accordance with the priorities in the preceding sentence. Upon the drawing of any Letter of Credit that has been cash collateralized, the funds held as cash collateral shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the Issuing Bank or the Lenders, as applicable.

(o)           Prepayments of the Term Loan made pursuant to this Section 2.11, including, without limitation those made with the Net Proceeds of the Principal Properties, first, shall be applied ratably to the Term Loans of the Term Lenders, and, second, the amount remaining, if any, after the prepayment in full of all Term Loans outstanding at such time may be retained by the Borrowers for use in the ordinary course of business.

(p)           Prepayments of the Term A-2 Loan made pursuant to this Section 2.11 shall be applied ratably to the Term A-2 Loans of the Term A-2 Lenders.  Anything contained herein to the contrary notwithstanding, in the event the Borrowers are required to make, or voluntarily determine to make, a prepayment (a “Waivable Prepayment”) of the Term A-2 Loans, not less than three Business Days prior to the date (the “Prepayment Date”) on which the Borrowers elect (or is otherwise required) to make such Waivable Prepayment, the Borrowers shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Term A-2 Lender of the amount of such Term A-2 Lender’s Applicable Percentage of such Waivable Prepayment and such Term A-2 Lender& #146;s option to refuse such amount.  Each such Term A-2 Lender (each, a “Declining Lender”) may exercise such option by giving written notice to the Administrative Agent of its election to do so on or before the second Business Day prior to the Prepayment Date (it being understood that any Term A-2 Lender which does not notify the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Prepayment Date shall be deemed to have elected, as of such date, to require such prepayment).  On the Prepayment Date, the Borrowers shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied to the Term A-2 Lenders (other than Declining Lenders), to prepay the Term A-2 Loans of such Term A-2 Lenders (which prepayment shall be applied to the principal of the Term A-2 Loans in accordance with the provisions of this Agreement), provided that if all Term A-2 Lenders are Declining Lenders, the B orrowers may nevertheless make such Waivable

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Prepayment and all Term A-2 Lenders shall be required to accept their Applicable Percentage thereof.

(q)           The Loans shall be repaid daily in accordance with (and to the extent required under) the provisions of Section 5.14.

SECTION 2.12 Fees.

(a)           The Borrowers shall pay to the Administrative Agent, for its own account, the fees and other charges payable in the amounts and at the times separately agreed upon between the Borrowers and the Administrative Agent.

(b)           The Borrowers shall pay to the Administrative Agent for the account of each Tranche A Lender, in accordance with its Tranche A Applicable Percentage, a fee, calculated on the basis of a 360 day year and actual days elapsed, equal to the percentage set forth under the heading “Tranche A Unused Fee” in the definition of Applicable Margin times the actual daily amount by which the then Aggregate Tranche A Commitments exceed the sum of (A) the principal amount of Tranche A Loans and Swingline Loans, then outstanding, and (B) the then L/C Exposure.  In addition, the Borrowers shall pay to the Administrative Agent for the account of each Tranche A-1 Lender, in accordance with its Tranche A-1 Applicable Percentage, a fee, calculated on the basis of a 360 day year and actual days elapsed, equal to the percen tage set forth under the heading “Tranche A-1 Unused Fee” in the definition of Applicable Margin times the actual daily amount by which the then Aggregate Tranche A-1 Commitments exceed the principal amount of Tranche A-1 Loans then outstanding.  The foregoing fees (the “Unused Fees”) shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the tenth Business Day of each January, April, July and October, commencing with the first such date to occur after the Effective Date, and on the last day of the Availability Period.  The Unused Fees shall be calculated quarterly in arrears.

(c)           The Borrowers shall pay the Administrative Agent for the account of the Lenders, on the tenth Business Day of each October, January, April and July, in arrears, a fee calculated on the basis of a 360 day year and actual days elapsed (each, a “Letter of Credit Fee”), equal to the following per annum percentages of the average Stated Amount of the following categories of Letters of Credit outstanding during the three month period then ended:

(i)            Standby Letters of Credit for the Borrowers: At a per annum rate equal to the then Applicable Margin for Tranche A LIBOR Loans; and

(ii)           Commercial Letters of Credit for the Borrowers: At a per annum rate equal to fifty percent (50%) of the then Applicable Margin for Tranche A LIBOR Loans.

(d)           The Borrowers shall pay directly to the Issuing Bank for its own account a fronting fee with respect to each Letter of Credit, at a rate equal to one-eighth of one percent (0.125%) per annum, computed on the Stated Amount of such Letter of Credit.  Such fronting fees shall be due and payable on the tenth Business Day after the end of each October, January, April and July, in arrears, on the basis of a 360 day year and actual days elapsed, commencing with the first such date to occur after the issuance of such Letter of Credit, on the expiration date

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of such Letter of Credit and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of the Letter of Credit shall be determined in accordance with Section 1.06. The Borrowers shall pay to the Issuing Bank, in addition to all Letter of Credit Fees otherwise provided for hereunder, the reasonable and customary fees, costs and charges of the Issuing Bank in connection with the issuance, negotiation, settlement, amendment and processing of each Letter of Credit issued by the Issuing Bank in such amounts as shall be mutually agreed by the Company and the Issuing Bank, provided that no such fees, costs or charges shall be payable in respect of the issuance of any Existing Letters of Credit.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(e)           All fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for the respective accounts of the Administrative and other Lenders as provided herein. Once due, all fees shall be fully earned and shall not be refundable under any circumstances.

SECTION 2.13 Interest.

(a)           The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Margin.

(b)           The Loans comprising each LIBOR Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

(c)           Notwithstanding the foregoing, upon the occurrence and during the continuance of a Specified Default, at the written election of the Required Lenders, principal or interest on any Loan shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan,  two percent (2.0%) plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.13 and (ii) in the case of any other amounts, two percent (2.0%) plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section 2.13.

(d)           Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section 2.13 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan of any Lender (other than a prepayment of an ABR Loan prior to the end of the Availability Period with respect to such Lender), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any LIBOR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e)           All interest hereunder shall be computed on the basis of a year of 360 days (or 365/366 days in the case of ABR Loans), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

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SECTION 2.14 Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a LIBOR Borrowing:

(a)           the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or

(b)           the Administrative Agent is advised by a majority in interest of the Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent thereafter notify the Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and (ii) if any Borrowing Request requests a LIBOR Borrowing, such Borrowing shall be made as an ABR Borrowing.

SECTION 2.15 Increased Costs.

(a)           If any Change in Law shall:

(i)            impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank; or

(ii)           impose on any Lender or any Issuing Bank or the London interbank market any other condition affecting this Agreement, any Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then the Company will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

(b)           If any Lender or any Issuing Bank determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or Issuing Bank’s holding

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company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), then from time to time the Company will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.

(c)           A certificate of a Lender or any Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

(d)           Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Company shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above s hall be extended to include the period of retroactive effect thereof.

(e)           This Section 2.15 shall not apply to Taxes, which shall be governed exclusively by Section 2.17.

SECTION 2.16 Break Funding Payments.  In the event of (a) the payment of any principal of any LIBOR Loan other than on the last day of an Interest Period applicable thereto (including as a result of the acceleration of the Obligations upon the occurrence of an Event of Default or in accordance with the provisions of Section 2.02), (b) the conversion of any LIBOR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(l) and is revoked in accordance therewith), or (d) the assignment of any LIBOR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by a Borrower pursuant to Section 2.1 9, then, in any such event, such Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a LIBOR Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount

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and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrowers and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

SECTION 2.17 Taxes.

(a)           Any and all payments by or on account of any obligation of any Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if such Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section), the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in acc ordance with Applicable Law.

(b)           In addition, each of the Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.

(c)           Each of the Borrowers shall indemnify the Administrative Agent, each Lender and each Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, Lender or Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of such Borrower hereunder or under any other Loan Document and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability, along with a r easonably detailed explanation of the tax issue, delivered to a Borrower by a Lender or Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or Issuing Bank, shall be conclusive absent manifest error.

(d)           As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)           Any Lender that is entitled to an exemption from or reduction of withholding tax under the law of any jurisdiction in which any Borrower is located or doing business, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to such Borrower (with a copy to the Administrative Agent) or to the Administrative Agent, at the time or times prescribed by Applicable Law, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by such Borrower as will

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permit such payments to be made without withholding or at a reduced rate, provided that such Lender has received written notice from such Borrower or the Administrative Agent advising it of the availability of such exemption or reduction and supplying all applicable documentation.  Each Lender will promptly notify the Company and the Administrative Agent in writing if there is any change in such Lender’s circumstances that would prevent such Lender from providing updates to the documentation previously delivered or would invalidate any documentation previously delivered.

(f)            If the Administrative Agent, any Lender or Issuing Bank becomes aware that it is entitled to claim a refund from a Governmental Authority in respect of Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower, or with respect to which a Borrower has paid additional amounts pursuant to this Section 2.17, it shall promptly notify such Borrower of the availability of such refund claim and shall, within 30 days after receipt of a request by such Borrower, make a claim to such Governmental Authority for such refund at such Borrower’s expense. If the Administrative Agent, any Lender or Issuing Bank receives a refund (including pursuant to a claim for a refund made pursuant to the preceding sentence) in respect of Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower i n which such Borrower has paid additional amounts pursuant to this Section 2.17, it shall within 30 days from the date of such receipt pay over such refund to such Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 2.17 with respect to Indemnified Taxes or Other Taxes giving rise to such refund), net of all out of pocket expenses of the Administrative Agent, the Lender or Issuing Bank and without interest (other than interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that such Borrower, upon the request of the Administrative Agent, Lender or Issuing Bank, agrees to repay the amount paid over to such Borrower (plus penalties, interest and other charges, including the reasonable fees and expenses of the Administrative Agent and Collateral Agent) to the Administrative Agent, Lender or Issuing Bank if the Administrative Agent, Lender or Issuing Bank is required to r epay such refund to such Governmental Authority.

(g)           Without prejudice to the survival of any other agreement contained herein, the agreements and obligations contained in this Section 2.17 shall survive the payment in full of the principal of and interest on all Loans and L/C Disbursements made hereunder.

(h)           Each Non-U.S. Lender shall deliver to the Company and the Administrative Agent two copies of either U.S. Internal Revenue Service Form W-8BEN (in the case of a Non-U.S. Lender claiming treaty benefits), Form W-8BEN and a tax status certificate in form reasonably acceptable to the Company and the Administrative Agent (in the case of a Non-U.S. Lender claiming portfolio interest exemption), Form W-8ECI or, with respect to a Non-U.S. Lender that is not acting for its own account (e.g., where the Non-U.S. Lender is a partnership or a participating lender), Form W-8IMY, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Company under this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement and on or before the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a different lending office. In addition, each Non-U.S. Lender shall deliver such forms promptly upon the expiration, obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender and shall promptly notify

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the Company and the Administrative Agent in writing if there is any change in such Lender’s circumstances that would prevent such Lender from providing a new form or would invalidate a form previously delivered.  Notwithstanding any other provision of this Section 2.17(h), a Non-U.S. Lender shall not be required to deliver any form pursuant to this Section 2.17(h) that such Non-U.S. Lender is not legally able to deliver.

(i)            Nothing contained in this Section 2.17 shall require the Administrative Agent, any Lender or Issuing Bank to make available any of its tax returns (or any other information that it deems, in its sole discretion, to be confidential or proprietary).

SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a)           Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees, reimbursement of L/C Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., Boston, Massachusetts time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 100 Federal Street, Boston, Massachusetts 02110, except payments to be made directly to the Issuing Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent and the Collateral Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in Dollars.

(b)           If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed L/C Disbursements, interest and fees then due hereunder in respect of Obligations, then such funds shall be applied in the order and manner set forth in Section 7.03.

(c)           If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in L/C Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in L/C Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in L/C Disbursem ents; provided that (i) if any such participations are purchased

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and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.

(d)           Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment by such Borrower is due to the Administrative Agent for the account of any of the Lenders or the Issuing Bank hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of such Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and i ncluding the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

SECTION 2.19 Mitigation Obligations; Replacement of Lenders.

(a)           If any Lender (including for this purpose an Issuing Bank) requests compensation under Section 2.15, or if a Borrower is required to pay any additional amount or indemnification payment to any Lender, the Administrative Agent, or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not other wise be materially disadvantageous to such Lender. Each of the Borrowers hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)           If any Lender requests compensation under Section 2.15, or if a Borrower is required to pay any additional amount or indemnification payment to any Lender, the Administrative Agent, or to any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and

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subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent and the Issuing Bank, which consents shall not be unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in L/C Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Sect ion 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

SECTION 2.20 Designation of Company as each Borrowers’ Agent.

(a)           Each Borrower hereby irrevocably designates and appoints the Company as such Borrower’s agent to obtain Loans and Letters of Credit, the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement.  As the disclosed principal for its agent, each Borrower shall be obligated to the Administrative Agent and each Lender on account of Loans so made and Letters of Credit so issued as if made directly by the Lenders to such Borrower, notwithstanding the manner by which such Loans and Letters of Credit are recorded on the books and records of the Company and of any other Borrower.

(b)           Each Borrower represents to the Credit Parties that it is an integral part of a consolidated enterprise, and that each Loan Party will receive direct and indirect benefits from the availability of the joint credit facility provided for herein, and from the ability to access the collective credit resources of the consolidated enterprise which the Loan Parties comprise. Each Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers.  Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers as if such Borrower which is so assuming and agreeing were each of the ot her Borrowers.

(c)           The Company shall act as a conduit for each Borrower (including itself, as a Borrower) on whose behalf the Company has requested a Loan.  None of the Agents nor any other Credit Party shall have any obligation to see to the application of such proceeds.

(d)           The authority of the Company to request Loans and Letters of Credit on behalf of, and to bind, the Borrowers, shall continue unless and until the Administrative Agent actually receives written notice of: (i) the termination of such authority, and (ii) the subsequent appointment of a successor Company, which notice is signed by the respective Financial Officers of each Borrower; and (iii) written notice from such successive Company accepting such appointment and acknowledging that from and after the date of such appointment, the newly appointed Company shall be bound by the terms hereof, and that as used herein, the term “Company” shall mean and include the newly appointed Company.

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ARTICLE III
Representations and Warranties

Until the Commitments have expired or been terminated and the principal of and interest on each Loan, all fees and other Obligations payable hereunder shall have been paid in full, and all Letters of Credit shall have expired or terminated and all L/C Disbursements shall have been reimbursed, each of the Borrowers represents and warrants to the Lenders that:

SECTION 3.01 Organization; Powers. Except as set forth on Schedule 3.01, each of the Company and the Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

SECTION 3.02 Authorization; Enforceability. The Transactions to be entered into by each Loan Party are within such Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if required, equityholder action. This Agreement has been duly executed and delivered by each of the Borrowers and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of each such Borrower or Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and have been disclosed to the Lenders to their reasonable satisfaction, and except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate any Applicable Law or regulation or the charter, by-laws or other organizational documents of the Company or any of the Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Company or any of the Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Company or any of th e Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the Company or any of the Subsidiaries, except Liens created under the Loan Documents.

SECTION 3.04 Financial Condition; No Material Adverse Change.

(a)           The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of consolidated operations and retained earnings, consolidated shareholders’ equity and consolidated cash flows (i) as of and for the fiscal year ended February 24, 2007, reported on by Pricewaterhouse Coopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 8, 2007, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the

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Subsidiaries (other than Pathmark and its Subsidiaries) as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b)           The Company has heretofore furnished to the Lenders the consolidated balance sheet and statements of consolidated operations and retained earnings, consolidated shareholders’ equity and consolidated cash flows of Pathmark and its Subsidiaries (i) as of and for the fiscal year ended February 3, 2007, reported on by Deloitte & Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended August 4, 2007, certified by Pathmark’s chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Pathmark and its Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(c)           The unaudited consolidated pro forma balance sheet of the Company and its Subsidiaries as of September 8, 2007, and the related consolidated statements of income and cash flow of the Company and its Subsidiaries for the twelve month period then ended, certified by the chief financial officer, senior vice president-finance, or treasurer of the Company fairly present the consolidated financial condition of Company and its Subsidiaries as at such date and the consolidated results of operations of the Company and its Subsidiaries for the period ended on such date, in the case of the consolidated balance sheet, giving pro forma effect to the Transactions.

(d)           The consolidated forecasted balance sheet, statements of income and cash flows of the Company and its Subsidiaries delivered to the Lenders were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, a reasonable estimate of the Company’s and its Subsidiaries future financial condition and performance, giving pro forma effect to the Transactions.

(e)           Since August 4, 2007, there has been no material adverse change in (a) the business, assets, operations or condition, financial or otherwise, of the Company and the Subsidiaries, taken as a whole, except as disclosed in the Exchange Act Filings made prior to the Effective Date or in any Schedules or Exhibits to this Agreement as of the Effective Date, (b) after the Effective Date, the ability of any Loan Party to perform any of its obligations under any Loan Document, (c) after the Effective Date, the rights of or benefits available to the Lenders under any Loan Document or (d) the Collateral as a whole.

SECTION 3.05 Properties.

(a)           Each of the Company and the Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for Liens permitted by Section 6.02 or other Liens reasonably acceptable to the Administrative Agent.  As of the Restatement Effective Date, the Real Estate listed on Schedule 1.01(C) is the only Real Estate constituting a Principal Property.

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(b)           Each of the Company and the Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Company and the Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.06 Litigation and Environmental Matters.

(a)           There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any of the Borrowers, threatened against or affecting the Company or any of the Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan Documents or the Transactions.

(b)           Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.

(c)           Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

SECTION 3.07 Compliance with Laws and Agreements. Each of the Company and the Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.

SECTION 3.08 Investment Company Status. Neither the Company nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

SECTION 3.09 Taxes.  Each of the Company and the Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) any Taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

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SECTION 3.10 Employee Benefit Plans.  No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.

SECTION 3.11 Disclosure. To the best knowledge of the Borrowers, the Borrowers have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which the Company or any of the Subsidiaries is subject, and all other matters known to any of them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains, as of the date hereof (or in the case of items furnished after the date hereof, when furnished), any material misstatement of fact or omits, as of the date hereof (or in the case of items furnished after the date hereof, when furnished), to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time so furnished.

SECTION 3.12 Subsidiaries. Schedule 3.12 sets forth the name of, and the ownership interest of the Company in, each Subsidiary of the Company, in each case as of the Restatement Effective Date.

SECTION 3.13 Insurance. Schedule 3.13 sets forth a description of all insurance maintained by or on behalf of the Company and the Subsidiaries as of the Restatement Effective Date. As of the Restatement Effective Date, all premiums in respect of such insurance have been paid.  The insurance maintained by or on behalf of the Company and the Subsidiaries is in full force and effect and complies with the requirements set forth in Section 5.07.

SECTION 3.14 Labor Matters. As of the Restatement Effective Date, there are no strikes, lockouts or slowdowns against the Company or any Subsidiary pending or, to the knowledge of any Borrower, threatened. The Company and the Subsidiaries have not been in violation of, in any material respect, the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with hours worked by or payments made to employees or any similar matters. All payments due from the Company or any Subsidiary, or for which any claim may be made against the Company or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of the Company or such Subsidiary. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Company or any Subsidiary is bound.

SECTION 3.15 Security Documents.

(a)           The Pledge Agreement creates in favor of the Collateral Agent, for the benefit of the Secured Parties referred to therein, a legal, valid, continuing and enforceable security interest

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in the Collateral (as defined in the Pledge Agreement), the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, and the Pledged Securities (as defined in the Pledge Agreement) have been delivered to the Collateral Agent (together with stock powers or other appropriate instruments of transfer executed in blank form).  The Collateral Agent has a fully perfected first priority Lien on, and security interest in, to and under all right, title and interest of each pledgor thereunder in such Collateral, and such security interest is in each case prior and superior in right and interest to any other Person.

(b)           The Security Agreement creates in favor of the Collateral Agent, for the benefit of the Secured Parties referred to therein, a legal, valid, continuing and enforceable security interest in the Collateral (as defined in the Security Agreement), the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.  The financing statements, releases and other filings set forth on Schedule 3.15(b) are in appropriate form and have been or will be filed in the offices specified in the Perfection Certificate.  Upon such filings and/or the obtaining of “control,” the Collateral Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the grantors thereunder in all Collateral that may be perfected by filing, recording or registering a financing statement or analogous document (including without limitation the proceeds of such Collateral subject to the limitations relating to such proceeds in the UCC) or by obtaining control, under the UCC (in effect on the date this representation is made) in each case prior and superior in right to any other Person other than with respect to Liens expressly permitted by Section 6.02 hereof.

(c)           When the Security Agreement is filed in the United States Patent and Trademark Office and the United States Copyright Office and when financing statements, releases and other filings set forth on Schedule 3.15(c) in appropriate form are filed in the offices specified on the Perfection Certificate, the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the applicable Loan Parties in the Intellectual Property (as defined in the Security Agreement) in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any other Person other than with respect to Liens expressly permitted by Section 6.02 hereof (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks, trademark applications and copyrights acquired by the Loan Parties after the date hereof).

(d)           The Mortgages create in favor of the Collateral Agent, for the benefit of the Secured Parties referred to therein (other than those on the Principal Properties which secure obligations due to on account of the Term Lenders and the Collateral Agent with respect to the Term Loan only), a legal, valid, continuing and enforceable Lien in the Mortgaged Property (as defined in the Mortgages), the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity

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or at law. Upon the filing of the Mortgages with the appropriate Governmental Authorties, the Collateral Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the grantors thereunder in all Mortgaged Property that may be perfected by such filing (including without limitation the proceeds of such Mortgaged Property, in each case prior and superior in right to any other Person other than with respect to Liens expressly permitted by Section 6.02 hereof or other Liens reasonably acceptable to the Collateral Agent.

SECTION 3.16 Federal Reserve Regulations.

(a)           No Loan Party is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

(b)           No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to buy or carry Margin Stock or to extend credit to others for the purpose of buying or carrying Margin Stock or to refund indebtedness originally incurred for such purpose in violation of Regulation U or X or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.

ARTICLE IV
Conditions

SECTION 4.01 Restatement Effective Date. This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):

(a)           The Administrative Agent shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(b)           The Administrative Agent shall have received a favorable written opinion (addressed to the Agents, the Issuing Bank and the Lenders and dated the Restatement Effective Date) of Cahill Gordon & Reindel LLP, counsel for the Loan Parties, substantially in the form of Exhibit I.  Each of the Borrowers hereby requests such counsel to deliver such opinions.

(c)           The Administrative Agent shall have received a true and complete copy of each Loan Party’s organizational documents, an incumbency certificate for each person authorized to execute Loan Documents on behalf of a Loan Party, resolutions authorizing the due execution, delivery and performance of the Loan Documents and the Transactions and a good standing certificate from each jurisdiction where a Loan Party is organized and each jurisdiction necessary for it to carry on its business and such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satis factory to the Administrative Agent and its counsel.  The Loan Parties’ delivery of the foregoing documents to the Administrative Agent on the Effective Date shall be deemed to have satisfied this condition.

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(d)           The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the president, a vice president or a Financial Officer of the Company, confirming compliance with the conditions set forth in this Section 4.01.

(e)           The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.

(f)            The Administrative Agent shall have received a completed Borrowing Base Certificate dated the Restatement Effective Date and signed by a Financial Officer of the Company, calculating the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of the end of the month ended immediately prior to the Restatement Effective Date.

(g)           The Administrative Agent shall have received the results of satisfactory lien searches (including, without limitation, the results of satisfactory tax lien and judgment lien searches) showing the absence of any Liens (except for the Liens in favor of the Collateral Agent) on any of any of the Collateral other than Liens expressly permitted by Section 6.02 hereof or Liens which will be terminated on the Restatement Effective Date (including, without limitation, those Liens in favor of the lenders under the Bridge Financing Facility (as defined in the Existing Credit Agreement).  The Administrative Agent’s receipt of the foregoing on the Effective Date shall be deemed to have satisfied this condition (other than with respect to the termination of the Liens with respect to the Bridge Financing Facility, which shall be r equired to be delivered prior to the Restatement Effective Date).

(h)           All necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be satisfactory to the Administrative Agent.

(i)            The Administrative Agent, based upon delivery of a customary officer’s solvency certificate together with the consolidated balance sheet of the Company, shall be satisfied that Loan Parties, on a consolidated basis, are Solvent on the Restatement Effective Date, before and after giving effect to the Credit Extensions made on the Restatement Effective Date.

(j)            To the extent required to be satisfied on the Restatement Effective Date, the Real Estate Eligibility Requirements shall have been satisfied.

(k)           The Administrative Agent shall have received such other instruments, documents, and agreements as the Administrative Agent or its counsel may reasonably request.

The Administrative Agent shall notify the Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.

SECTION 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of the following conditions:

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(a)           The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (unless a representation or warranty is made as of a specific date, in which case such representation or warranty shall remain true and correct as of such specified date).

(b)           At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.

(c)           No indictment of, or institution of any legal process or proceeding against, the Company or any Loan Party, under any federal, state, municipal, and other civil or criminal statute, rule, regulation, order, or other requirement having the force of law, which is reasonably likely to have a Material Adverse Effect shall have occurred.

(d)           Each of the Borrowers, in connection with each Borrowing, and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to have represented and warranted on the date thereof that the conditions specified in paragraphs (a) and (b) of this Section 4.02 have been satisfied at that time and that after giving effect to such extension of credit the Borrowers shall continue to be in compliance with the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base.  The conditions set forth in this Section 4.02 are for the sole benefit of the Administrative Agent, the Issuing Bank and the Lenders and may be waived by the Administrative Agent, in whole or in part, without prejudice to the rights of the Administrative Agent, the Issuing Bank or any Lender.

ARTICLE V
Affirmative Covenants

Until the Commitments have expired or been terminated and the principal of and interest on each Loan, all fees and other Obligations payable hereunder shall have been paid in full, and all Letters of Credit shall have expired or terminated and all L/C Disbursements shall have been reimbursed, each of the Borrowers covenants and agrees with the Lenders that:

SECTION 5.01 Financial Statements and Other Information.  The Company will furnish to the Administrative Agent and each Lender each of the following together with all supporting documentation as the Administrative Agent may reasonably require:

(a)           within 90 days after the end of each fiscal year of the Company, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

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(b)           within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, the Company’s consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footn otes;

(c)           within 45 days after the end of each of the first two (or three, in the event of a fiscal quarter having four fiscal four week periods) fiscal four-week periods of each fiscal quarter of the Company (other than the first fiscal four-week period of each fiscal year), its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal four-week periods and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as presenting in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that, the information required by this Section shall not be required with respect to any month during which the average daily Exposure during such month is less than $50,000,000;

(d)           concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default or an Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12, and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Company’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(e)           concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or an Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);

(f)            within ten (10) Business Days after the end of each fiscal month, a completed Borrowing Base Certificate calculating and certifying the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of the last day of such fiscal month, signed on behalf of the Company by one of its Financial Officers, provided, however, that upon the occurrence of a Triggering Event, the Borrowing Base Certificate required by this paragraph will be delivered by the Borrowers weekly within eight (8) Business Days after the end of each calendar week and shall calculate and certify the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of the last day of such calendar week;

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(g)           prior to the end of the first fiscal quarter of each fiscal year of the Company, a reasonably detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for each fiscal quarter during such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available and from time to time, any significant revisions of such budget (including, without limitation, any amounts to be paid to any pension plan (including any Plan, or, the best of the Company’s knowledge, a Multiemployer Plan) or to any third party on account of any such pension plan);

(h)           within ten (10) Business Days after any sale, transfer or other disposition of assets permitted by clause (c) of Section 6.05, a complete description of such sale, transfer or other disposition, and, with respect to sales, transfers or other dispositions resulting in Net Proceeds greater than $20,000,000, (i) the most recently delivered Borrowing Base Certificate delivered pursuant to Section 5.01(f) revised to give pro forma effect to such sale, transfer or other disposition and (iii) any significant revisions to the budget previously delivered pursuant to clause (g) of this Section;

(i)            promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;

(j)            the financial and collateral reports described on Schedule C hereto, at the times set forth in such Schedule; provided that, the information required by this Section shall not be required with respect to any month during which the average daily Exposure during such month is less than $50,000,000;

(k)           upon the reasonable request of the Administrative Agent, (i) a list of all “business associate agreements” (as such term is defined in HIPAA) that any Loan Party has entered into with any Person and true, correct and complete copies of all of such agreements; and (ii) a list of all participation agreements of the Borrowers with health maintenance organizations, insurance programs, preferred provider organizations and other third party payors; and

(l)            promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.

Documents required to be delivered pursuant to Section 5.01(a), Section 5.01(b) or Section 5.01 (c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 5.01; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) at the

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reasonable request of any Lender, the Company shall deliver paper copies of the documents requested by such Lender to the Administrative Agent for delivery to such Lender, and (y) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Loan Parties hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”).  The Loan Parties hereby agree that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities they will use commer cially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Administrative Agent, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

SECTION 5.02 Notices of Material Events.  The Company will furnish to the Administrative Agent and each Lender prompt written notice of the following:

(a)           the occurrence of any Default or Event of Default;

(b)           the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Company or any Affiliate thereof (including, without limitation, based upon any provision of any pharmaceutical law or Medicare and Medicaid program rules and regulations applicable to it) that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

(c)           the occurrence of any ERISA Event that, alone or together with any other related ERISA Events that have occurred, could reasonably be expected to result in liability of the Company and its Subsidiaries in an aggregate amount exceeding $5,000,000;

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(d)           during the period commencing on the Effective Date and ending on the date on which Eligible Leaseholds are no longer included in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, the receipt by any Loan Party of any notice from any lessor of such lessor’s intention to terminate any Lease relating to Eligible Leaseholds, together with a copy of all such notices of intended termination from the lessors thereunder; and

(e)           any other development (other than those specified above as to which the Lenders have received due notice) that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Company setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

SECTION 5.03 Information Regarding Collateral.

(a)           The Company will furnish to the Administrative Agent at least fifteen (15) days (or such shorter period of time as may be agreed to by the Administrative Agent) prior written notice of any change (i) in any Loan Party’s corporate, limited liability company or partnership name, (ii) in the location of any Loan Party’s its “location” (as determined under Section 9-307 of the UCC), chief executive office or principal place of business (including the establishment of any such new office or facility), (iii) in any Loan Party’s organizational structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number or state organizational number.  The Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made unde r 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 security interest in all of the Collateral.

(b)           Each year, at the time required for delivery of annual financial statements with respect to the preceding fiscal year pursuant to clause (a) of Section 5.01, the Company shall deliver to the Administrative Agent a certificate of 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 the Perfection Certificate delivered on the Effective Date or the date of the most recent certificate delivered pursuant to this Section and (ii) certifying that all Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all refilings, rereco rdings 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 to the extent necessary to protect and perfect the security interests under the Security Agreement for a period of not less than eighteen (18) months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).

SECTION 5.04 Existence; Conduct of Business.  The Company will, and will cause each of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises,

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patents, copyrights, trademarks and trade names material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.

SECTION 5.05 Payment of Obligations.  The Company will, and will cause each of its Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the same shall become delinquent or in default, except where (a) (1) the validity or amount thereof is being contested in good faith by appropriate proceedings, (2) the Company or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (3) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation or (b) the failure to make such payment could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.06 Maintenance of Properties.  The Company will, and will cause each of the Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.

SECTION 5.07 Insurance.

(a)           The Company will, and will cause each of its Subsidiaries to, (i) maintain insurance with financially sound and reputable insurers reasonably acceptable to the Administrative Agent on such of its property and in at least such amounts and against at least such risks 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 occurring upon, in or about or in connection with the use of any properties owned, occupied or controlled by it including the insurance required pursuant to the Security Documents; (ii) maintain such other insurance as may be required by law; and (iii) upon request by the Administrative Agent, which request need not be made in writing, furnish the Administrative Agent w ith certificates evidencing the insurance required by this paragraph.  In the event of the Company’s or Loan Parties’ failure to obtain or maintain the insurance required by this paragraph, without waiving any Event of Default occasioned thereby, the Administrative Agent shall have the right to obtain the required coverage and invoice the Company for the premium payments therefor. To the extent consistent with prudent business practice, the Company may maintain a program of self-insurance in place of any of the insurance required by this paragraph.

(b)           Fire and extended coverage policies with respect to any Collateral shall not include (i) a provision to the effect that any of the Borrowers, the Administrative Agent, the Collateral Agent, or any other party shall be a coinsurer and (ii) shall be endorsed, which endorsement shall be satisfactory in form and substance to the Collateral Agent, to name the Collateral Agent for the benefit of the Lenders, as additional insured or loss payee, as appropriate, and shall include such other provisions as the Collateral Agent may reasonably require from time to time to protect the interests of the Lenders, provided that the requested provisions are available at reasonable cost.  Each such policy referred to in this paragraph also shall provide that it shall not be cancelled, modified or not renewed (i) by reason of nonpa yment of premium except upon not less than 30 days’ prior written notice thereof by the insurer to the Collateral Agent (giving the Collateral Agent the right to cure defaults in the payment of

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premiums) or (ii) for any other reason except upon not less than 30 days’ prior written notice thereof by the insurer to the Collateral Agent.  The Borrowers shall deliver to the Collateral Agent, prior to the cancellation of any such policy of insurance, a Certificate of Insurance for the replacement policy.

(c)           If at any time the area in which any Eligible Real Estate or Eligible Leaseholds are located is designated (i) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), the Borrowers shall obtain flood insurance in such total amount as is reasonable and customary for companies engaged in the business of operating supermarkets, and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time, or (ii) a “Zone 1” area, the Borrower shall obtain earthquake insurance in such total amount as is reasonable and customary for companies engaged in the business of operating supermarkets.

(d)           The Company and the Loan Parties acknowledge and agree that all income, payments and proceeds of a physical damage property insurance claim payable to them and relating to the Collateral will be received by the Company and the Loan Parties as agent hereunder for the benefit of the Lenders and deposited in an account subject to a Blocked Account Agreement.  Unless a Triggering Event or an Event of Default has occurred and is continuing, the Collateral Agent shall use commercially reasonable efforts to cause any insurance proceeds for which it is loss payee for the benefit of the Secured Parties to be made available to the Borrowers as promptly as practicable after receipt thereof by the Collateral Agent. The Company and the Loan Parties disclaim any right, title or interest in or to such income, payments or proceeds and hereby confirm that the Company and the Loan Parties have granted a first priority security interest to the Collateral Agent (for the benefit of the Lenders) in all such income, payments and proceeds.

(e)           The Company shall continue to maintain, for itself and its subsidiaries, a Directors and Officers insurance policy, and a “Blanket Crime” policy including employee dishonesty, forgery or alteration, theft, disappearance and destruction, robbery and safe burglary, property, and computer fraud coverage with responsible companies in such amounts as are customarily carried by business entities engaged in similar businesses similarly situated, and will upon request by the Administrative Agent, which request need not be made in writing, furnish the Administrative Agent certificates evidencing renewal of each such policy.

SECTION 5.08 Casualty and Condemnation.  The Borrowers (a) will furnish to the Administrative Agent and the Lenders prompt written notice of any casualty or other insured damage to any material portion of any Collateral or the commencement of any action or proceeding for the taking of any Collateral or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding and (b) will ensure that the Net Proceeds of any such event (whether in the form of insurance proceeds or otherwise) are collected and applied in accordance with the applicable provisions of this Agreement and the Security Documents.

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SECTION 5.09 Books and Records; Inspection and Audit Rights.

(a)           The Company will keep proper financial records in accordance with GAAP. The Company will, and will cause each of the Subsidiaries to, permit any representatives designated by the Administrative Agent in consultation with the Borrowers, upon reasonable prior notice, no less frequently than semi-annually in any period of twelve (12) consecutive months commencing on or after the Effective Date, to visit and inspect its properties, to examine and make extracts from such records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at reasonable times.  The foregoing provisions are supplemental of the rights of the Administrative Agent set forth in Section 5.09(b) below.

(b)           The Company will, and will cause each of the Subsidiaries to, permit any representatives designated by the Administrative Agent (including any consultants, accountants, lawyers and appraisers retained by the Administrative Agent) in consultation with the Borrowers to conduct commercial finance examinations and appraisals of the assets included in the computation of the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base, including supporting systems, processes and controls, all at the expense of the Borrowers (i) one (1) time during any twelve month period in which Excess Availability is at all times greater than $250,000,000, (ii) up to two (2) times during any twelve month period in which Excess Availability is at any time less than or equal to $250,000,000 but greater than or equal to $100,000,000, (i ii) up to three (3) times during any twelve month period in which Excess Availability is at any time less than $100,000,000 and (iv) at any time at the request of the Administrative Agent after the occurrence and the continuation of an Event of Default; provided, that, notwithstanding the provisions of clause (iii) above, no more than two (2) appraisals of Eligible Real Estate, Eligible Leaseholds, and Scripts may be conducted during any twelve month period unless an Event of Default has occurred and is continuing.  In addition to the foregoing the Administrative Agent will have the right to conduct such commercial finance examinations and appraisals at the expense of the Administrative Agent, but no more frequently than twice in any calendar year. The expenses reimbursable by the Borrowers pursuant to his Section shall include the reasonable fees and expenses of any representatives retained by the Administrative Agent.

(c)           The Administrative Agent may, from time to time, engage a third party, reasonably acceptable to the Company to undertake Phase I environmental site assessments during the term of this Agreement of the Eligible Real Estate and Eligible Leaseholds, provided that such assessments may only be undertaken during the continuance of any Specified Default. The Borrowers will, and will cause each of their Subsidiaries to, cooperate in all respects with the Administrative Agent and such third parties to enable such assessment and evaluation to be timely completed in a manner reasonably satisfactory to the Administrative Agent.

SECTION 5.10 Compliance with Laws.  The Company will, and will cause each of the Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.11 Use of Proceeds and Letters of Credit.  The proceeds of the Loans will be used to (i) on the Effective Date, to finance a portion of the Merger, (ii) to refinance the Existing Financing Agreements, and (iii) for general corporate purposes, including working capital, repayment of Indebtedness (including, without limitation, pursuant to Section 6.08(b)(iii)),

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capital expenditures, permitted acquisitions, permitted distributions, and stock repurchases. No part of the proceeds of any Loan will be used, directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. Letters of Credit will be issued only for general corporate purposes.

SECTION 5.12 Additional Subsidiaries.  If any additional Subsidiary is formed or acquired after the Effective Date or if an Immaterial Subsidiary is not dissolved or liquidated or merged into another Loan Party as contemplated by the Company, the Company will notify the Administrative Agent, the Collateral Agent and the Lenders thereof and (a) the Company will cause such Subsidiary (i) to become a party to (A) the Guaranty (or this Agreement if such Subsidiary shall be a Borrower hereunder by executing a Joinder in the form of Exhibit R), (B) the Indemnity, Subrogation and Contribution Agreement, (C) the Security Agreement and (D) the Pledge Agreement, in each case in the manner provided therein and within ten (10) Business Days after such Subsidiary is formed or acquired and (ii) promptly to take such actions to perfect the L iens on such Subsidiary’s assets granted under the Security Documents as the Administrative Agent or the Required Lenders shall reasonably request and (b) if any Equity Interests of such Subsidiary are owned by or on behalf of any Loan Party, the Company will cause such Equity Interests to be pledged pursuant to the Pledge Agreement within ten (10) Business Days after such Subsidiary is formed or acquired (excluding, if such Subsidiary is a Foreign Subsidiary, shares of voting stock of such Subsidiary).

SECTION 5.13 Further Assurances

(a)           The Borrowers will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, termination statements, fixture filings and other documents), which may be required under any Applicable Law, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties. The Borrowers also agree to provide to the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Admin istrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.

(b)           During the period commencing on the Effective Date and ending on the date on which Eligible Leaseholds are no longer included in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, if the Appraised Value of all Eligible Leaseholds is at any time less than $300,000,000, the Loan Parties will cause additional Leaseholds having an Appraised Value at least equal to the Leasehold Differential to become the subject of a Mortgage in favor of the Collateral Agent, failing which the Tranche A Leasehold Cap shall be reduced by the amount of the Leasehold Differential, and if such reduction does not equal the amount of the Leasehold Differential, the Term A-2 Leasehold Cap shall be reduced by any remaining portion of the Leasehold Differential.

(c)           During the period commencing on the Effective Date and ending on the date on which Eligible Leaseholds are no longer included in the Tranche A Borrowing Base or the

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Tranche A-1 Borrowing Base, the Borrowers will, and will cause each of the Subsidiaries to, use their commercially reasonable efforts to obtain lease terms in any lease entered into by any Borrower or any Loan Party after the date hereof not expressly prohibiting the recording in the relevant real estate filing office of an appropriate memorandum of lease and the encumbrancing of the leasehold interest of such Borrower or such other Loan Party, as the case may be, in the property that is the subject of such lease.

(d)           If requested by the Administrative Agent in its reasonable discretion, with respect to any Distribution Center, the Loan Parties shall use their commercially reasonable efforts to obtain a Priority of Claims Waiver from the holder of any Indebtedness incurred under Section 6.01(a)(vi) with respect to such Distribution Center.

(e)           To the extent that the Obligations shall at any time be less than the amount originally set forth in any Mortgage on Real Estate located in the State of New York or to the extent otherwise required by Applicable Law to grant, preserve, protect or perfect the Liens created by such Mortgage and the validity or priority thereof, the Borrowers shall to take all further actions including the payment of any additional mortgage recording taxes, fees, charges, costs and expenses required so too grant, preserve, protect or perfect the Liens created by such Mortgage to the maximum amount of Obligations by its terms secured thereby and the validity or priority of any such Lien.

SECTION 5.14 Cash Management.

(a)           Annexed hereto as Schedule 5.14(a) is a schedule of all DDAs that are maintained by the Loan Parties, which schedule shall include, with respect to each depository (i) the name and address of such depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.

(b)           Annexed hereto as Schedule 5.14(b) is a list describing all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.

(c)           Annexed hereto as Schedule 5.14(c) is a list describing all payors of the third party insurance provider accounts from which a Loan Party receives payments of Eligible Third Party Insurance Provider Account Receivables.

(d)           Within ninety (90) days after the Effective Date (or such longer time as the Administrative Agent may, in its sole discretion, agree in writing), each Loan Party shall:

(i)            deliver to the Administrative Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors;

(ii)           deliver to the Administrative Agent notifications, (each, an “Insurance Provider Notification”) substantially in the form attached as Exhibit L which have been executed on behalf of such Loan Party and addressed to such Loan Party’s payors of third party insurance providers accounts;

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(iii)          enter into a Blocked Account Agreement  substantially in the form attached as Exhibit M (or in such other form reasonably acceptable to the Administrative Agent) with the banks with which such Borrower maintains accounts into which the DDAs are concentrated (collectively, the “Blocked Accounts”) listed on Schedule 5.14(d)(iii) attached hereto; and

(iv)          deliver to the Administrative Agent a notification, (the “Coinstar Notification”) substantially in the form attached as Exhibit N which has been executed on behalf of the Loan Parties and addressed to Coinstar, Inc.

(e)           At the request of the Administrative Agent (which request shall not be made prior to the date that is forty-five (45) days after the Effective Date), each Loan Party shall deliver to the Administrative Agent notifications (each, a “DDA Notification”) substantially in the form attached as Exhibit O which have been executed on behalf of each Loan Party to each depository institution with which any DDA is maintained.

(f)            Each DDA Notification, Credit Card Notification, Insurance Provider Notification and Blocked Account Agreement and the Coinstar Notification shall require, after the occurrence and during the continuance of a Triggering Event, the Loan Parties shall promptly and in any event within two Business Days, cause the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at Bank of America (the “Agent’s Account”) from:

(i)            the sale of Inventory and other Collateral;

(ii)           all proceeds of collections of Accounts;

(iii)          all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Prepayment Event or other transaction or event;

(iv)          the then contents of each DDA;

(v)           the then entire ledger balance of each Blocked Account; and

(vi)          the proceeds of all credit card charges.

(g)           Upon the occurrence of a Triggering Event, the Borrowers shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above.  If, at any time after the occurrence of a Triggering Event, any cash or cash equivalents owned by any Loan Party that constitutes Collateral are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Administrative Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement.

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(h)           The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Blocked Account Agreements consistent with the provisions of this Section 5.14 and otherwise satisfactory to the Administrative Agent.  Unless consented to in writing by the Administrative Agent, the Loan Parties shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Administrative Agent.

(i)            The Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder. The only Disbursement Accounts as of the Restatement Effective Date are those described in Schedule 5.14(i).

(j)            The Agent’s Account shall at all times be under the sole dominion and control of the Administrative Agent.  Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from the Agent’s Account, (ii) the funds on deposit in the Agent’s Account shall at all times continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in Section 2.11(m) or Section 7.03 of this Agreement, as applicable.  In the event that, notwithstanding the provisions of this Section 5.14, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Admi nistrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.

(k)           Any amounts received in the Agent’s Account at any time when all of the Obligations have been and remain fully repaid shall be remitted to the Borrowers, if and as the Company may request.

(l)            The following shall apply to deposits and payments under and pursuant to this Agreement:

(i)            Funds shall be deemed to have been deposited to the Agent’s Account on the Business Day on which deposited, provided that notice of such deposit is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;

(ii)           Funds paid to the Administrative Agent other than by deposit to the Agent’s Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that notice of such payment is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;

(iii)          If notice of a deposit to a Agent’s Account or payment is not available to the Administrative Agent until after 12:00 noon, Boston, Massachusetts time, on a

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Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m., Boston, Massachusetts time, on the then next Business Day;

(iv)          If any item deposited to the Agent’s Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the Loan Account and the Borrowers shall indemnify the Administrative Agent and the Lenders against all claims and losses resulting from such dishonor or return.

SECTION 5.15 Priority of Claims Waivers.  Unless reserved for in accordance with the provisions hereof, the Borrowers from time to time shall promptly deliver, or cause to be promptly delivered, a Priority of Claims Waiver from each vendor, landlord, public warehouse operator or other third party bailee that has not provided a Priority of Claims Waiver in form and substance satisfactory to the Administrative Agent for each third party storage facility located in any Priming Jurisdiction.

SECTION 5.16 Benefit Plans Payments.  The Loan Parties, Subsidiaries and all ERISA Affiliates shall make all required contributions under any Plans or Multiemployer Plans which, if not made, could result in a Material Adverse Effect unless such payment is being contested pursuant to Section 5.05.

ARTICLE VI
Negative Covenants

Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other Obligations payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all L/C Disbursements shall have been reimbursed, each of the Borrowers covenants and agrees with the Lenders that:

SECTION 6.01 Indebtedness; Certain Equity Securities.

(a)           The Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:

(i)            Indebtedness created under the Loan Documents;

(ii)           Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof;

(iii)          Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04;

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(iv)          Guarantees by the Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Company or any other Subsidiary; provided that Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;

(v)           Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of leased real property) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness , no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (C) the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by this clause (v) and clause (vii) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (b) of Section 6.06 shall not exceed $300,000,000;

(vi)          Without duplication of Indebtedness described in clause (v) hereof, Indebtedness of the Company or any Subsidiary incurred to finance the acquisition by the Company or any Subsidiary after the Effective Date of real property and improvements thereto (but not inventory or other personal property located therein), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be conti nuing,(B) the terms of such Indebtedness are commercially reasonable and (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness;

(vii)         Indebtedness of the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, as amended); provided that, (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitation set forth in the proviso to clause (v) above.

(viii)        Guarantees by the Company or any of its Subsidiaries of Indebtedness of third parties given in connection with the acquisition or improvement of real property for

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use in the business of the Company and its Subsidiaries not exceeding $10,000,000 at any one time outstanding;

(ix)           software licenses required to be reflected as indebtedness on the Company’s consolidated balance sheet in an aggregate amount not exceeding $10,000,000;

(x)            without duplication of any other Indebtedness permitted hereunder, liabilities for leases of real property characterized as Indebtedness for purposes of GAAP;

(xi)           other unsecured Indebtedness in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;

(xii)          Indebtedness on account of the Series A Warrants issued to Yucaipa Corporate Initiatives Fund I, L.P., Yucaipa American Alliance (Parallel) Fund I, L.P. and Yucaipa American Alliance Fund I, L.P. in connection with the Transactions to the extent that GAAP requires such Warrants to be included as a liability on the Consolidated balance sheet of the Company and its Subsidiaries;

(xiii)         Indebtedness of the Borrowers in an amount not to exceed $32,700,000 to Blue Ridge Investments, LLC which Indebtedness shall be secured pursuant to Section 6.02(i) hereof; and

(xiv)        Indebtedness of the Borrowers on account of the Convertible Notes, in an aggregate principal amount not to exceed $420,000,000, plus any additional amounts recorded in accordance with GAAP related to the convertible bond hedge and warrant transaction issued concurrently with the Convertible Notes, outstanding at any time (or such greater amount as the Administrative Agent, in its discretion, may agree).

(b)           The Company will not, nor will the Company permit any Subsidiary to, issue any preferred stock or other preferred Equity Interests, other than Qualified Preferred Stock.

SECTION 6.02 Liens.  The Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:

(a)           Liens created under the Loan Documents and the Blocked Account  Agreements;

(b)           Permitted Encumbrances;

(c)           any Lien on any property or asset of the Company or any Subsidiary set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any asset contained in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, (ii)  such Lien shall not apply to any other property or asset of the Company or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, the obligations thereunder or the property or assets securing such obligations;

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(d)           any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien shall not apply to any other property or assets of the Company or any Subsidiary, (iii) such Lien (other than Permitted Encumbrances) shall not apply to any asset contained in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, and (iv) such Lien shall secure only those obligations which it secures on the date of such acquisition and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and re placements);

(e)           Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by clause (v) of Section 6.01(a), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;

(f)            Liens on real properties and improvements thereto (but not inventory or other personal property located therein) owned or leased by the Company or any Subsidiary; provided that such Liens secure Indebtedness permitted by clause (vi) of Section 6.01(a);

(g)           Liens of sellers of goods to any Loan Party arising under the provisions of Applicable Law similar to Article 2 of the UCC in the ordinary course of business, covering only goods (other than Inventory and Equipment (as defined in the Security Agreement) included in Tranche A Borrowing Base or the Tranche A-1 Borrowing Base), and Liens that secure Indebtedness permitted by clause (vii) of Section 6.01 ;

(h)           Liens constituting leasehold interests made by a Loan Party as lessor entered into in the ordinary course of business;

(i)            Liens in favor of Blue Ridge Investments, LLC to secure Indebtedness permitted under Section 6.01(a)(xiii) on the Company’s short-term investment in Columbia Strategic Cash Portfolio, a series of Columbia Qualified Purchaser Funds, LLC, a Delaware limited liability company; and

(j)            Any right, title and interest of the landlord under any lease pursuant to which a Loan Party has a leasehold interest in any property or assets and any liens that by operation of law have been placed by such landlord on property over which any Loan Party has any real property interest.

SECTION 6.03 Fundamental Changes.

(a)           The Company will not, nor will it permit any Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (i) any Subsidiary may merge into or with the Company in a transaction in which the Company

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is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Loan Party) is a Loan Party (iii) any Subsidiary (other than a Borrower) may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and the Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders; (iv) any Immaterial Subsidiary may liquidate or dissolve, and (v) the Company may cause the Merger as contemplated in the Merger Agreement to be undertaken, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.

(b)           The Company will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Company and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.

SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions.  The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity Interests in or evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:

(a)           Cash and Cash Equivalents;

(b)           the Company’s short-term investment in Columbia Strategic Cash Portfolio, a series of Columbia Qualified Purchaser Funds, LLC  and the other investments existing on the date hereof and set forth on Schedule 6.04 and any other investments from time to time not to exceed at any time outstanding an aggregate principal amount in excess of the Net Proceeds received from the disposition of investments permitted by this Section 6.04(b);

(c)           investments by the Company and its Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement (excluding the common stock of any Foreign Subsidiary), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $20,000,000 at any time outstanding and (iii) neither the Company nor any of the Subsidiaries will create or acquire any Subsidiary after the Effective Date that is not a Loan Party;

(d)           loans or advances made by the Company to any Subsidiary and made by any Subsidiary to the Company or any other Subsidiary; provided that the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c) above;

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(e)           Guarantees constituting Indebtedness permitted by Section 6.01; provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c) above;

(f)            investments 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;

(g)           non-cash consideration received in connection with the sale, transfer, lease or disposition of any asset in compliance with Sections 6.05 and 6.06;

(h)           other investments made after the Effective Date; provided that at any time there is any outstanding Exposure hereunder, (i) the aggregate amount of such investments plus the aggregate amount of Restricted Payments made pursuant to Section 6.08(a)(i) shall not exceed $150,000,000 in the aggregate and (ii) immediately before and after giving effect to the making of any such Investments, (A) Excess Availability shall be in an amount greater than twenty percent (20%) of the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base) then in effect, and (B) no Default or Event of Default has occurred and is continuing; and

(i)            earn-outs and other customary post-disposition obligations arising out of Permitted Divestitures.

SECTION 6.05 Asset Sales.  The Company will not, and will not permit any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Company permit any of its Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:

(a)           sales, transfers or other dispositions of inventory, used or surplus equipment, or Cash or Cash Equivalents made pursuant to Section 6.04(a) or (h), in each case in the ordinary course of business;

(b)           sales, transfers and dispositions to the Company or a Subsidiary; provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;

(c)           sales, transfers and other dispositions of assets that are not permitted by any other clause of this Section; provided that immediately before and after giving effect to such sale, transfer or disposition (i) the Loan Parties, on a consolidated basis, are Solvent, and (ii) no Default or Event of Default has occurred or is continuing; and provided further that the assets sold, transferred or otherwise disposed of (including assets sold, transferred or disposed of by means of the sale, transfer or disposition of any Equity Interests) in reliance upon this clause (c) during any fiscal year of the Company shall not exceed fifteen percent (15%) of the operating assets of the Loan Parties as of the Effective Date;

(d)           sales of assets pursuant to sale and leaseback transactions permitted by Section 6.06;

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(e)           leases or subleases of property (excluding sale and leaseback transactions) by any Loan Party in the ordinary course of business;

(f)            Permitted Divestitures, provided that any Net Proceeds received by the Borrowers and the Subsidiaries in connection with any such Permitted Divestiture shall be paid to the Administrative Agent for application to the Obligations in accordance with the provisions of Section 2.11(m);

(g)           the Borrowers and the Subsidiaries may enter into Asset Swaps, provided that the aggregate fair market value of the stores or facilities transferred by the Borrowers and the Subsidiaries pursuant to Asset Swaps in a year shall not exceed $10,000,000;

(h)           (i) mergers and consolidations, and (ii) liquidations and dissolutions, in each case in compliance with Section 6.03(a); and

(i)            sales of assets or Equity Interests of Subsidiaries acquired by the Company in its acquisition of Best Cellars, Inc. and the Subsidiaries of Best Cellars, Inc.;

provided that all sales, transfers, leases and other dispositions permitted hereby shall be made for fair value and at least 70% cash consideration (other than those permitted by clauses (a), (b) and (h) above).

SECTION 6.06 Sale and Leaseback Transactions.  The Company will not, and will not permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred, except (a) any such sale of any fixed or capital assets that is made for consideration having a cash component in an amount not less than the greater of (i) the fair market value of such fixed or capital asset, or (ii) the amount, if any, of availability generated by such asset (without giving effect to any amounts which have been advanced against such asset) under the Tranche A-1 Borrowing Bas e (or if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base) and, in each case, is consummated within 180 days after the Company or such Subsidiary acquires or completes the construction of such fixed or capital asset, and (b) any other such sale of fixed or capital assets, provided that (i) any such sale of any fixed or capital assets that is made for consideration having a cash component in an amount not less than the amount, if any, of availability generated by such asset (without giving effect to any amounts which have been advanced against such asset) under the Tranche A-1 Borrowing Base (or if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base), and (ii) the aggregate book value of all assets sold after the Effective Date pursuant to this clause (b) shall be subject to the limitation set forth in the proviso to clause (v) of Section 6.01(a).

SECTION 6.07 Hedging Agreements.  The Company will not, and will not permit any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business to hedge or mitigate interest rate, currency or energy exposure to which the Company or any Subsidiary is exposed in the conduct of its business.

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SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness.

(a)           The Company will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Company may make any Restricted Payment provided that immediately before and after giving effect to any such Restricted Payment (1) the Loan Parties, on a consolidated basis, are Solvent, (2) Excess Availability on the date of any such dividend and average monthly Excess Availability projected on a pro forma basis for the following twelve months shall be in an amount greater than twenty percent (20%) of Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base), and (3) no Default or Event of Default has occurred and is continuing, (ii) the Company may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock and (iii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock.

(b)           The Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) in respect of principal of, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of, (i) any Indebtedness of the Company or any Subsidiary that is scheduled to mature after the Maturity Date, (ii) any other Indebtedness of the Company or any Subsidiary provided that:

(i)            except as provided in clauses (iv) and (v) below, the Loan Parties may make regularly scheduled or mandatory repayments or redemptions of Indebtedness permitted under Section 6.01 (including, without limitation, payments of principal and interest as and when due);

(ii)           the Company or any Subsidiary may make voluntary payments and distributions in respect of any Indebtedness of the Company or any Subsidiary, provided that immediately before and after giving effect to any such distribution or payment (A) the Loan Parties, on a consolidated basis, are Solvent, (B) Excess Availability on the date of such distribution or payment and projected on a pro forma basis for the following twelve months shall be in an amount greater than twenty percent (20%) of the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base), and (C) no Default or Event of Default has occurred and is continuing or would arise therefrom;

(iii)          the Company may make mandatory prepayments of principal due under the Convertible Notes as long as immediately before and after giving effect to any such distribution or payment (A) the Loan Parties, on a consolidated basis, are Solvent, (B) Excess Availability on the date of such payment and projected on a pro forma basis for the following twelve months shall be in an amount greater than twenty percent (20%) of the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the then Tranche A Borrowing Base), and (C) no Default or Event of Default has occurred and is continuing or would arise therefrom; and

(iv)          refinancings and refundings of such Indebtedness subject to and in accordance with the terms of this Agreement.

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SECTION 6.09 Transactions with Affiliates.  The Company will not, nor will it permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, or (b) transactions between or among the Loan Parties not involving any other Affiliate.

SECTION 6.10 Restrictive Agreements. Except as set forth in Schedule 6.10, the Company will not, nor will it permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien securing Obligations or any refinancing thereof upon any property or assets actually owned by it, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its capital stock or to make or repay loans or advances to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Documen t, (ii) the foregoing shall not apply to customary provisions included in licenses, contracts, leases, agreements and other instruments restricting assignment and/or encumbrance, (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.

SECTION 6.11 Amendment of Material Documents.  The Company will not, nor will it permit any Subsidiary to, amend, modify or waive any of (a) the provisions of its certificate of incorporation, by-laws or other organizational documents in a manner materially adverse to the Lenders (b) its rights and obligations under other Material Contracts in a manner materially adverse to the Lenders, (c) the terms of the Company’s 93/8% Senior Quarterly Interest Bonds due 2039 and any refinancings or replacements of any of the foregoing in a manner materially adverse to the Lenders, or (d) the terms of the Convertible Notes and any refinancings or replacements of any of the foregoing, in the case of all of the foregoing, (i) shorten the scheduled maturity date of the Convertible Notes other than as the result of an acceleration after the occurrence of an event of default thereunder; or (ii) change the prepayment, redemption or defeasance provisions thereof in a manner adverse to any Loan Party; or (iii) is otherwise materially adverse to the Lenders.

SECTION 6.12 Minimum Excess Availability.  The Loan Parties shall not permit Excess Availability, at any time, to be less than the lesser of (a) ten percent (10%) of the then Tranche A-1 Borrowing Base (or if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base) and (b) ten percent (10%) of the Aggregate Commitments.

SECTION 6.13 Limitation on Change in Fiscal Year.  The Company will not permit its fiscal year to end on a date other than the last Saturday in the month of February in each calendar year.

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ARTICLE VII
Events of Default

SECTION 7.01 Events of Default.  If any of the following events (“Events of Default”) shall occur:

(a)           any Loan Party shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any L/C Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof (including, as required under Section 2.11) or otherwise;

(b)           any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;

(c)           any representation or warranty made or deemed made by or on behalf of any Borrower or any other Loan Party in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;

(d)           any Borrower shall (i) fail to observe or perform any covenant, condition or agreement contained in Sections 5.01 (excluding clauses (a), (b), (c) and (f) thereof), 5.02 (other than Section 5.02(d)), 5.04 (with respect to the existence of any Borrower),  5.11 or 5.14(f) or in Article VI or (ii) fail to observe or perform any covenant, condition or agreement contained in clauses (a), (b) or (c) of Section 5.01, and such failure shall continue unremedied for a period of fifteen (15) days (thirty (30) days if approved in writing by the Administrative Agent in its discretion) or (iii) fail to observe or perform any covenant, condition or agreement contained in clause (f) of Section 5.01 (subject to a grace period of up to five (5) Business Days if approved in wr iting by the Administrative Agent in its discretion) or (iv) fail to observe or perform any covenant, condition or agreement contained in Section 5.07, and such failure shall continue unremedied for a period of five (5) days or (v) fail to observe or perform any covenant, condition or agreement contained in Section 5.09(b) and such failure shall continue unremedied for a period of fifteen (15) days;

(e)           any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof from the Administrative Agent to the Company (which notice may be given at the request of any Lender);

(f)            the Company or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;

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(g)           any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the giving of notice and/or the lapse of any applicable grace period) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;

(h)           an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i)            the Company or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

(j)            the Company or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(k)           one or more judgments for the payment of money in an aggregate amount in excess of $35,000,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;

(l)            an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

(m)          any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, with the priority required by the applicable Security Document, except (i) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents, (ii) as a result of the Collateral Agent’s failure (x) to

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maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Pledge Agreement or (y) to file any document delivered by the Loan Parties to it for filing or (iii) as a result of the Collateral Agent’s failure to take any action that the Company reasonably requests, in writing, the Collateral Agent to take;

(n)           a Change in Control shall occur; or

(o)           the occurrence of an event of default on the part of the Company or any Loan Party under any Material Contract or Material Indebtedness to which the Company or any Loan Party is a party or any indenture or other agreement relating to any Material Indebtedness of the Company or any Loan Party;

(p)           the determination by the Company or any Loan Party, to suspend the operation of their business in the ordinary course, liquidate all or substantially all of the Company’s or such Loan Party’s assets or employ an agent or other third party to conduct a program of closings, liquidations or “Going-Out-Of-Business” sales of all or substantially all of the business; or

(q)           any Loan Document shall not be in full force and effect.

Solely for purposes of determining whether a Default or Event of Default has occurred under clause (h), (i), (j), or (p) of this Article VII, any reference in any such clause to any “Subsidiary” or any “Loan Party” shall be deemed not to include any Excluded Subsidiary.

SECTION 7.02 Remedies Upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent may, or, at the request of the Required Lenders shall, take any or all of the following actions:

(a)           declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Loan Parties;

(c)           require that the Loan Parties cash collateralize the L/C Exposure;

(d)           whether or not the maturity of the Obligations shall have been accelerated pursuant hereto, may (and at the direction of the Required Lenders, shall) proceed to protect, enforce and exercise all rights and remedies of the Credit Parties under this Agreement, any of the other Loan Documents or Applicable Law, including, but not limited to, by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Credit Parties;

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provided, however, that upon the occurrence of any Event of Default under Section 7.01(h) or (i), the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Loan Parties to cash collateralize the L/C Exposure as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender and without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Loan Parties.

No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of Law.

SECTION 7.03 Application of Funds.  After the exercise of remedies provided for in Section 7.02 (or after the Loans have automatically become immediately due and payable and the L/C Exposure have automatically been required to be cash collateralized as set forth in the proviso to Section 7.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

(a)           All Collateral Other Than Principal Properties:

First, to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and the Collateral Agent and amounts payable under Article II  payable to the Administrative Agent and the Collateral Agent), each in its capacity as such;

Second, to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the Tranche A Lenders, the Term Lenders and the Issuing Bank, ratably among them in proportion to the amounts described in this clause Second;

Third, to the extent that Swingline Loans have not been refinanced by a Loan, payment to the Swingline Lender of that portion of the Obligations constituting accrued and unpaid interest on the Swingline Loans;

Fourth, to payment of that portion of the Obligations (other than Tranche A-1 Loans, Term A-2 Loans, and L/C Exposure in which the Tranche A-1 Lenders participate) constituting accrued and unpaid interest on the Loans, L/C Exposure and such other Obligations, and fees (including Letter of Credit Fees), ratably among the Tranche A Lenders, the Term Lenders, and the Issuing Bank in proportion to the respective amounts described in this clause Fourth payable to them;

Fifth, to the extent that Swingline Loans have not been refinanced by a Loan, to payment to the Swingline Lender of that portion of the Obligations constituting unpaid principal of the Swingline Loans;

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Sixth, to payment of that portion of the Obligations constituting unpaid principal of the Loans (other than Tranche A-1 Loans and Term A-2 Loans) unreimbursed L/C Disbursements (other than those in which the Tranche A-1 Lenders participate), ratably among the Tranche A Lenders, the Term Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Seventh held by them;

Seventh, to the Administrative Agent for the account of the Issuing Bank, to cash collateralize that portion of L/C Exposure comprised of the aggregate undrawn amount of Letters of Credit (other than those in which the Tranche A-1 Lenders participate);

Eighth, ratably to pay any fees, indemnities, expenses and other amounts then due to the Tranche A-1 Lenders until paid in full;

Ninth, ratably to pay accrued and unpaid interest in respect of the Tranche A-1 Loans until paid in full;

Tenth, ratably to pay principal due in respect of Tranche A-1 Loans until paid in full;

Eleventh, to the Administrative Agent for the account of the Issuing Bank, to cash collateralize that portion of L/C Exposure comprised of the aggregate undrawn amount of Letters of Credit in which the Tranche A-1 Lenders participate;

Twelfth, ratably to pay any fees, indemnities, expenses and other amounts then due to the Term A-2 Lenders until paid in full;

Thirteenth, ratably to pay accrued and unpaid interest in respect of the Term A-2 Loans until paid in full;

Fourteenth, ratably to pay principal due in respect of Term A-2 Loans until paid in full;

Fifteenth, to payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations, but excluding any Other Liabilities), ratably among the Credit Parties in proportion to the respective amounts described in this clause Fifteenth held by them

Sixteenth, to payment of that portion of the Obligations arising from Cash Management Services, ratably among the Credit Parties in proportion to the respective amounts described in this clause Sixteenth held by them;

Seventeenth, to payment of all other Obligations arising from Bank Products, ratably among the Credit Parties in proportion to the respective amounts described in this clause Seventeenth held by them; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required by Applicable Law.

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Subject to Section 2.06, amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit pursuant to clauses Seventh and Eleventh above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

Any amounts received by the Term Lenders pursuant to Section 7.03(a) shall be held as cash collateral for the Obligations relating to the Term Loans until (i) the liquidation of the Principal Properties and application of the Net Proceeds thereof to the Term Loans, or (ii) such earlier date that the Administrative Agent and the Company shall otherwise agree.

(b)Principal Properties

First, to payment of fees, indemnities, expenses and other amounts, including fees, charges and disbursements of counsel to the Administrative Agent and the Collateral Agent, with respect to the realization on the Principal Properties;

Second, to payment of accrued and unpaid interest on the Term Loans, ratably among the Term Lenders in proportion to the respective amounts described in this clause Second payable to them

Third, to payment of unpaid principal of the Term Loans ratably among the the Term Lenders in proportion to the respective amounts described in this clause Third held by them;

Fourth, to payment of all other Obligations relating solely to the Term Loan ratably among the Term Lenders in proportion to the respective amounts described in this clause Fourth held by them; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required by Applicable Law.

ARTICLE VIII

The Agents

SECTION 8.01 Appointment and Administration by Administrative Agent.

Each Lender and each Issuing Bank hereby irrevocably designate Bank of America as Administrative Agent under this Agreement and the other Loan Documents. The general administration of the Loan Documents shall be by the Administrative Agent. The Lenders and each Issuing Bank each hereby (a) irrevocably authorizes the Administrative Agent (i) to enter into the Loan Documents to which it is a party, and (ii) at its discretion, to take or refrain from taking such actions as agent on its behalf and to exercise or refrain from exercising such powers under the Loan Documents as are delegated by the terms hereof or thereof, as appropriate, together with all powers reasonably incidental thereto, and (b) agrees and consents to all of the provisions of the Security Documents.  The Administrative Agent shall have no duties or responsibilities except as set forth in this Agreement a nd the other Loan Documents, nor shall it have any fiduciary relationship with any other Credit Party, and no implied covenants,

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responsibilities, duties, obligations, or liabilities shall be read into the Loan Documents or otherwise exist against the Administrative Agent.

SECTION 8.02 Appointment of Collateral Agent.

Each Lender and each Issuing Bank hereby irrevocably designate Bank of America as Collateral Agent under this Agreement and the other Loan Documents. The Lenders and each Issuing Bank each hereby (a) irrevocably authorizes the Collateral Agent (i) to enter into the Loan Documents to which it is a party, and (ii) at its discretion, to take or refrain from taking such actions as agent on its behalf and to exercise or refrain from exercising such powers under the Loan Documents as are delegated by the terms hereof or thereof, as appropriate, together with all powers reasonably incidental thereto, and (b) agrees and consents to all of the provisions of the Security Documents. All Collateral shall be held or administered by the Collateral Agent (or its duly-appointed agent) for its own benefit and for the ratable benefit of the other Credit Parties. Any proceeds received by the C ollateral Agent from the foreclosure, sale, lease or other disposition of any of the Collateral and any other proceeds received pursuant to the terms of the Security Documents or the other Loan Documents shall be paid over to the Administrative Agent for application as provided in this Agreement and the other Loan Documents.  The Collateral Agent shall have no duties or responsibilities except as set forth in this Agreement and the other Loan Documents, nor shall it have any fiduciary relationship with any other Credit Party, and no implied covenants, responsibilities, duties, obligations, or liabilities shall be read into the Loan Documents or otherwise exist against the Collateral Agent.

SECTION 8.03 Agreement of Applicable Lenders.

Upon any occasion requiring or permitting an approval, consent, waiver, election or other action on the part of the Lenders, action shall be taken by the Administrative Agent, for and on behalf or for the benefit of all Credit Parties upon the direction of the requisite percentage of Lenders, and any such action shall be binding on all Credit Parties. No amendment, modification, consent, or waiver shall be effective except in accordance with the provisions of Section 9.02.

SECTION 8.04 Liability of Agents.

(a)           The Agents, when acting on behalf of the Credit Parties, may execute any of their respective duties under this Agreement by or through any of its officers, agents and employees, and no Agent nor its respective directors, officers, agents or employees shall be liable to any other Credit Party for any action taken or omitted to be taken in good faith, or be responsible to any other Credit Party for the consequences of any oversight or error of judgment, or for any loss, except to the extent of any liability imposed by law by reason of such Agent’s own gross negligence, bad faith or willful misconduct. No Agent or its respective directors, officers, agents and employees shall in any event be liable to any other Credit Party for any action taken or omitted to be taken by it pursuant to instructions received by it from the requisit e percentage of Lenders, or in reliance upon the advice of counsel selected by it. Without limiting the foregoing, no Agent or any of its respective directors, officers, employees, or agents shall be: (i) responsible to any other Credit Party for the due execution, validity, genuineness, effectiveness, sufficiency, or enforceability of, or for any recital, statement, warranty or representation in, this Agreement, any other Loan Document or any related agreement, document or order; (ii) required to ascertain

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or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants, or agreements of this Agreement or any of the Loan Documents; (iii) responsible to any other Credit Party for the state or condition of any properties of the Loan Parties or any other obligor hereunder constituting Collateral for the Obligations or any information contained in the books or records of the Loan Parties; (iv) responsible to any other Credit Party for the validity, enforceability, collectibility, effectiveness or genuineness of this Agreement or any other Loan Document or any other certificate, document or instrument furnished in connection therewith; or (v) responsible to any other Credit Party for the validity, priority or perfection of any Lien securing or purporting to secure the Obligations or for the value or sufficiency of any of the Collateral.< /p>

(b)           The Agents may execute any of their duties under this Agreement or any other Loan Document by or through its agents or attorneys-in-fact, and shall be entitled to the advice of counsel concerning all matters pertaining to its rights and duties hereunder or under the other Loan Documents.  The Agents shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

(c)           None of the Agents nor any of their respective directors, officers, employees, or agents shall have any responsibility to any Loan Party on account of the failure or delay in performance or breach by any other Credit Party (other than by each such Agent in its capacity as a Lender) of any of its respective obligations under this Agreement or any of the other Loan Documents or in connection herewith or therewith.

(d)           The Agents shall be entitled to rely, and shall be fully protected in relying, upon any notice, consent, certificate, affidavit, or other document or writing believed by them to be genuine and correct and to have been signed, sent or made by the proper person or persons, and upon the advice and statements of legal counsel (including, without, limitation, counsel to the Loan Parties), independent accountants and other experts selected by any Loan Party or any Credit Party.  The Agents shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless they shall first receive such advice or concurrence of the requisite percentage of the Lenders as it deems appropriate or they shall first be indemnified to its satisfaction by the other Credit Parties against any and all liabi lity and expense which may be incurred by them by reason of the taking or failing to take any such action.

SECTION 8.05 Notice of Default.

The Agents shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless such Agent has actual knowledge of the same or has received notice from a Credit Party or Loan Party referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”.  In the event that an Agent obtains such actual knowledge or receives such a notice, such Agent shall give prompt notice thereof to each of the other Credit Parties.  Upon the occurrence of an Event of Default, the Administrative Agent shall (subject to the provisions of Section 9.02) take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders. Unless and until the Administrative Agent shall have received such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking

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such action, with respect to any such Default or Event of Default as it shall deem advisable in the best interest of the Credit Parties.  In no event shall the Administrative Agent be required to comply with any such directions to the extent that the Administrative Agent believes that its compliance with such directions would be unlawful.

SECTION 8.06 Credit Decisions.

Each Credit Party (other than the Agents) acknowledges that it has, independently and without reliance upon the Agents or any other Credit Party, and based on the financial statements prepared by the Loan Parties and such other documents and information as it has deemed appropriate, made its own credit analysis and investigation into the business, assets, operations, property, and financial and other condition of the Loan Parties and has made its own decision to enter into this Agreement and the other Loan Documents.  Each Credit Party (other than the Agents) also acknowledges that it will, independently and without reliance upon the Agents or any other Credit Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in determining whether or not conditions precedent to closing any Loan hereunder have been satisfi ed and in taking or not taking any action under this Agreement and the other Loan Documents.

SECTION 8.07 Reimbursement and Indemnification.

Each Credit Party (other than the Agents) agrees to (i) reimburse the Agents and their Affiliates for such Credit Party’s Applicable Percentage of (x) any expenses and fees incurred by any Agent for the benefit of Credit Parties under this Agreement and any of the other Loan Documents, including, without limitation, counsel fees and compensation of agents and employees paid for services rendered on behalf of the Credit Parties, and any other expense incurred in connection with the operations or enforcement thereof not reimbursed by the Loan Parties and (y) any expenses of any Agent incurred for the benefit of the Credit Parties that the Loan Parties have agreed to reimburse pursuant to this Agreement or any other Loan Document and have failed to so reimburse and (ii) indemnify and hold harmless each Agent and any of its Affiliates, directors, officers, employees, or age nts, on demand, in the amount of such Credit Party’s Applicable Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against it or any Credit Party in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by it or any of them under this Agreement or any of the other Loan Documents to the extent not reimbursed by the Loan Parties, including, without limitation, costs of any suit initiated by any Agent against any Credit Party (except such as shall have been determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Agent); provided, however, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Credit Party in its capacity as such.  The provisions of this Section 8.07 shall survive the repayment of the Obligations and the termination of the Commitments.

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SECTION 8.08 Rights of Agents.

It is understood and agreed that the Agents shall have the same rights and powers hereunder (including the right to give such instructions) as the other Lenders and may exercise such rights and powers, as well as their rights and powers under other agreements and instruments to which they are or may be party, and engage in other transactions with the Loan Parties, as though they were not the Agents.  Each Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of commercial or investment banking, trust, advisory or other business with the Loan Parties and their Affiliates as if it were not an Agent hereunder.

SECTION 8.09 Notice of Transfer.

The Administrative Agent may deem and treat a Lender party to this Agreement as the owner of such Lender’s portion of the Obligations for all purposes, unless and until, and except to the extent, an Assignment and Acceptance shall have become effective as set forth in Section 9.04.

SECTION 8.10 Successor Agents.

Any Agent may resign at any time by giving thirty (30) Business Days’ written notice thereof to the other Credit Parties and the Company. Upon any such resignation of an Agent, the Required Lenders shall have the right to appoint a successor Agent, which, so long as there is no Event of Default, shall be reasonably satisfactory to the Company (whose consent in any event shall not be unreasonably withheld or delayed).  If no successor Agent shall have been so appointed by the Required Lenders and/or none shall have accepted such appointment within thirty (30) days after the retiring Agent’s giving of notice of resignation, the retiring Agent may, on behalf of the other Credit Parties, appoint a successor Agent which shall be a Person capable of complying with all of the duties of such Agent hereunder (in the opinion of the retiring Agent and as certified to the other Credit Partie s in writing by such successor Agent) which, so long as there is no Event of Default, shall be reasonably satisfactory to the Company (whose consent shall not in any event be unreasonably withheld or delayed).  Upon the acceptance of any appointment as Agent by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation hereunder as such Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was such Agent under this Agreement.

SECTION 8.11 Relation Among the Lenders.

The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of any Agent) authorized to act for, any other Lender.

SECTION 8.12 Reports and Financial Statements.

By signing this Agreement, each Lender:

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1)agrees to furnish the Administrative Agent on the first day of each month with a summary of all Other Liabilities due or to become due to such Lender;

2)is deemed to have requested that the Administrative Agent furnish such Lender, promptly after they become available, copies of all financial statements required to be delivered by the Company hereunder (including, without limitation, those described in Sections 5.01(a) through (f) hereof) and all commercial finance examinations and appraisals of the Collateral received by the Administrative Agent (collectively, the “Reports”);

3)expressly agrees and acknowledges that the Administrative Agent (i) makes no representation or warranty as to the accuracy of the Reports, and (ii) shall not be liable for any information contained in any Report;

4)expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent or any other party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;

5)agrees to keep all Reports confidential in accordance with Section 9.12; and

6)without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Administrative Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Credit Extensions that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans of the Borrowers; and (ii)  ;to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs) incurred by the Administrative Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

SECTION 8.13 Agency for Perfection.

Each Lender hereby appoints each other Lender as agent for the purpose of perfecting Liens for the benefit of the Agents and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other Applicable Law of the United States of America can be perfected only by possession.  Should any Lender (other than an Agent) obtain possession of any such

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Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative 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.

SECTION 8.14 Delinquent Lender.

(a)           If for any reason any Lender shall fail or refuse to abide by its obligations under this Agreement, including without limitation its obligation to make available to Administrative Agent its Applicable Percentage of any Loans, expenses or setoff or purchase its Applicable Percentage of a participation interest in the Swingline Loans or L/C Exposure (a “Delinquent Lender”) and such failure is not cured within ten (10) days of receipt from the Administrative Agent of written notice thereof, then, in addition to the rights and remedies that may be available to the other Credit Parties, the Loan Parties or any other party at law or in equity, and not at limitation thereof, (i) such Delinquent Lender’s right to participate in the administration of, or decision-making rights related to, the Obligations, thi s Agreement or the other Loan Documents shall be suspended during the pendency of such failure or refusal, and (ii) a Delinquent Lender shall be deemed to have assigned any and all payments due to it from the Loan Parties, whether on account of outstanding Loans, interest, fees or otherwise, to the remaining non-delinquent Lenders for application to, and reduction of, their proportionate shares of all outstanding Obligations until, as a result of application of such assigned payments the Lenders’ respective Applicable Percentages of all outstanding Obligations shall have returned to those in effect immediately prior to such delinquency and without giving effect to the nonpayment causing such delinquency.  The Delinquent Lender’s decision-making and participation rights and rights to payments as set forth in clauses (i) and (ii) hereinabove shall be restored only upon the payment by the Delinquent Lender of its Applicable Percentage of any Obligations, any participation obligatio n, or expenses as to which it is delinquent, together with interest thereon at the rate set forth in SECTION 2.13(c) hereof from the date when originally due until the date upon which any such amounts are actually paid.

(b)           The non-Delinquent Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to cause the termination and assignment, without any further action by the Delinquent Lender for no cash consideration (pro rata, based on the respective Commitments of those Lenders electing to exercise such right), of the Delinquent Lender’s Commitment to fund future Loans.  Upon any such purchase of the Applicable Percentage of any Delinquent Lender, the Delinquent Lender’s share in future Credit Extensions and its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and the Delinquent Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest, including, if so requested, an Assignment a nd Acceptance.

(c)           Each Delinquent Lender shall indemnify the Administrative Agent and each non-delinquent Lender from and against any and all loss, damage or expenses, including but not limited to reasonable attorneys’ fees and funds advanced by the Administrative Agent or by any non-delinquent Lender, on account of a Delinquent Lender’s failure to timely fund its Applicable Percentage of a Loan or to otherwise perform its obligations under the Loan Documents.

SECTION 8.15 Collateral and Guaranty Matters.   The Lenders and the Issuing Bank irrevocably authorize the Administrative Agent, at its option and in its discretion,

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(a)           to release or direct the Collateral Agent to release any Lien on any property granted to or held by the Collateral Agent or the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing in accordance with Section 9.02;

(b)           to release any Loan Party from its obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and

(c)           to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02.

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority, as applicable, to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Documents pursuant to this Section 8.14.  In each case as specified in this Section 8.14, the Administrative Agent and the Collateral Agent will, at the Company’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Loan Party from its obligations under the Loan Documents, in each case in accorda nce with the terms of the Loan Documents and this Section 8.15.

SECTION 8.16 Co-Syndication Agents; Documentation Agent and Co-Lead Arrangers.

Notwithstanding the provisions of this Agreement or any of the other Loan Documents, no Person who is or becomes a Co-Syndication Agent or a Documentation Agent nor the Co-Lead Arrangers shall have any powers, rights, duties, responsibilities or liabilities with respect to this Agreement and the other Loan Documents.

ARTICLE IX

Miscellaneous

SECTION 9.01 Notices

(a)           Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i)            if to any Borrower, to it in care of the Company at Two Paragon Drive, Montvale, New Jersey 07645, Attention of the Treasurer (Telecopy No. (201) 571-8036)

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with a copy to the Company at Two Paragon Drive, Montvale, New Jersey 07645, Attention of the Office of General Counsel (Telecopy No. (201) 571-8106);

(ii)           if to the Administrative Agent, the Collateral Agent or the Swingline Lender to Bank of America, N.A., 100 Federal Street, Boston, Massachusetts 02110, Attention: Christine Hutchinson  (Telecopy No. (617) 790-1234), (E-Mail to christine.hutchinson@bankofamerica.com), with a copy to Riemer & Braunstein, LLP, Three Center Plaza, Boston, Massachusetts 02108, Attention: David S. Berman, Esquire (Telecopy No. (617) 880-3456), (E-Mail to dberman@riemerlaw.com);

(iii)          if to the Issuing Bank, to it at Letters of Credit Department, Bank of America, N.A. 1 Fleet Way, Scranton, Pennsylvania 18507, Attention Michael Grizzanti (telecopy No. (800) 755-8743), (E-Mail to Michael.A.Grizzanti@bankofamerica.com);

(iv)          if to a Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

(b)           Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particu lar notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(c)           The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY

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OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Agents or any of their Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Loan Parties’ or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender, the Issuing Banks or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

SECTION 9.02 Waivers; Amendments.

(a)           No failure or delay by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document 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 Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unles s the same shall be permitted by clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.

(b)           Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Agent that is a party thereto and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or unreimbursed L/C Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan under Section 2.10 or the required date of reimbursement of any L/C Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment (including, without limitation, the

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waiver of any Event of Default occasioned by any non-payment of such amounts when due), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Sections 2.11(l), 2.11(m), 2.11(n), 2.18(b), 2.18(c) or 7.03, without the written consent of each Lender, (v) change any of the provisions of this Section or the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vi) directly or indirectly, whether by amendment, waiver or otherwise (A) increase any of advance rates contained in the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base (inc luding, without limitation, any increase to the Tranche A Leasehold Cap, the Term A-2 Leasehold Cap, the Additional Availability Amount, or the percentages of Eligible Scripts, Eligible Leaseholds and Eligible Real Estate which may comprise the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base) without the written consent of each Lender, (B) add additional categories of assets to the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base (e.g. intellectual property) without the written consent of each Lender, or (C) any other provisions of the definitions of “Tranche A Borrowing Base”, “Tranche A-1 Borrowing Base”, “Eligible Inventory”, “Eligible Coinstar Receivables”, “Eligible Credit Card Accounts Receivable”, “Eligible Third Party Insurance Provider Accounts Receivable”, “Eligible Real Estate”, “Eligible Leaseholds” or “Scripts”, in each case in a manner adverse to the interests of the Lenders or in a manner that would make more credit available to the Borrowers, without the written consent of the Required Lenders (calculated for the purpose of this clause (B) as though the percentage specified in the definition of “Required Lenders” were 66-2/3% instead of 50%), (vii) increase the total Commitments (other than, with respect to the Tranche A Commitments, in accordance with Section 2.02), without the written consent of each Lender, (viii) release any Loan Party from its Guarantee under the Guaranty (except as expressly provided in the Guaranty), or limit its liability in respect of such Guaranty, without the written consent of each Lender or (ix) release (A) all or any substantial part of the Collateral from the Liens of the Security Documents (except with respect to sales or transfers of, and other transactions relating to, Collateral permitted pursuant to the Loan Documents), without the written consent of each Lender, or (B) the Principal Properties from the Liens of the Security Documents (except with respect to sales or transfers of, and other transactions relating to, the Principal Properties permitted pursuant to the Loan Documents), without the written consent of each Term Lender and the Required Lenders (which, for purposes of calculation, shall include the Term Lenders); provided further that no such agreement shall (x) directly or indirectly change (A) any of advance rates contained in the Tranche A-1 Borrowing Base without the written consent of each Tranche A-1 Lender, (B) any other provisions of the definitions of “Tranche A-1 Borrowing Base” in a manner adverse to the interests of the Tranche A-1 Lenders or in a manner that would make more credit available to the Borrowers under the Tranche A-1 Borrowing Base, without the written consent of 66-2/3% of the Tranche A-1 Lenders, or (C) any provisions relating to the conditions precedent to the payment or prepayment of the Tranche A-1 Loans, the reduc tion of termination of the Tranche A-1 Commitments, or the conditions to the making of Tranche A-1 Loans under Section 2.01(f) hereof without the written consent of the Tranche A-1 Lenders, (y) directly or indirectly change any provisions relating to the conditions precedent to the payment or prepayment of the Term A-2 Loans without the written consent of the Term A-2 Lenders, or (z) amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank or the Collateral Agent without the prior

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written consent of the Administrative Agent or the Issuing Bank or the Collateral Agent, as the case may be. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into between the Borrowers, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank) if (i) by the terms of such agreement, the Commitment and L/C Exposure of each Lender not consenting to the amendment provided for therein shall, for such Lender, terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan owed to it and all other amounts owing to it or accrued for its account under this Agreement.

SECTION 9.03 Expenses; Indemnity; Damage Waiver.

(a)           The Borrowers agree, jointly and severally, to pay (i) all fees and reasonable out-of-pocket expenses (including, without limitation, the fees and expenses incurred in connection with any field examination and any appraisal of any of the Collateral) incurred by the Administrative Agent, the Collateral Agent and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Collateral Agent, in connection with the syndication of the credit facilities provided for herein, the preparation, execution, delivery and administration of the Loan Documents or any amendments, supplements, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expen ses (including the reasonable and documented fees, charges and disbursements of any counsel for the Administrative Agent, the Collateral Agent, the Issuing Bank and/or any Lender) incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection of their rights in connection with the Loan Documents, including their rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses (including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, the Collateral Agent, the Issu ing Bank or any Lender) incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, provided that the Lenders who are not the Agents shall be entitled to reimbursement for no more than one counsel representing all such Lenders (absent a conflict of interest in which case the Lenders may engage and be reimbursed for additional counsel).

(b)           The Borrowers agree, jointly and severally, to indemnify the Administrative Agent, the Collateral Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless (on an after tax basis) from, any and all losses, claims, causes of action, damages, liabilities, settlement payments, costs and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any other agreement or instrument contemplated hereby or

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thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Company or any of its subsidiaries, or any Environmental Liability related to the operations of the Company or any of its subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on cont ract, tort or any other theory and regardless of whether 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, costs or related expenses are determined by a court of competent jurisdiction by final judgment to have resulted from the gross negligence, bad faith, or willful misconduct of such Indemnitee, or relate to Hazardous Materials that first arise at any property owned by a Borrower after such property is transferred to any Indemnitee or its successors and assigns by foreclosure, deed in lieu of foreclosure or similar transfer.

(c)           To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent, the Collateral Agent or the Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent or the Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral Agent or the Issuing Bank in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based u pon its Applicable Percentage.

(d)           To the extent permitted by Applicable Law, none of the Borrowers shall assert, and each of the Borrowers hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.

(e)           All amounts due under this Section shall be payable promptly after written demand therefor.

(f)            For the avoidance of doubt, this Section 9.03 shall not apply to Tax matters, which shall be governed exclusively by Section 2.17.

SECTION 9.04 Successors and Assigns.

(a)           Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its

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rights or obligations hereunder or under any other Loan Document without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 9.04(b), (ii) by way of participation in accordance with the provisions of subsection Section 9.04(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.04(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in  Section 9.04(d) and, to the ext ent expressly contemplated hereby, the Related Parties of each of the Credit Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)           Assignments by Lenders.  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 9.04(b), participations in L/C Exposure and in Swingline Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i)            Minimum Amounts

(A)          in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, no minimum amount need be assigned; and

(B)           in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;

(ii)           Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to such Lender’s Tranche A Loans, Term Loans and Tranche A Commitment, except that this clause (ii) shall not (A) apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans, or (B) prohibit any Lender

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from assigning all or any portion of its rights and obligations with respect to (1) its Tranche A Commitment and Term Loan and (2) its Tranche A-1 Commitment and Term A-2 Loan on a non-pro rata basis;

(iii)          Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A)          the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund of such Lender; and

(B)           the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund of such Lender; and

(C)           the consent of the Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

(D)          the consent of the Swingline Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the assignment of any Commitment.

(iv)          Assignment and Acceptance.  The parties to each assignment (other than assignments by a Lender to its Affiliate or an Approved Fund of such Lender or pursuant to Sections 2.09, 2.19 or 9.04(f)) shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03. with respect to facts and circumstances occurring pr ior to the effective date of such assignment.  Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations

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under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.04(d).

(c)           Register.

(i)            The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive, absent manifest error, and the Loan Parties, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be avail able for inspection by the Company and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(ii)           Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 9.04(b) and any written consent to such assignment required by Section 9.04(b), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Assignment unless it has been recorded in the Register as provided in this paragraph.

(d)           Participations. Any Lender may at any time, without the consent of, or notice to, the Loan Parties or the Administrative Agent, sell participations to any Person (other than a natural person or the Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Loan Parties, the Administrative Agent, the Collateral Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, supplement, modification or waiver of any  provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, supplement, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant.  Subject to Section (c), each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations of such Sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.04(b). To the extent permitted by law, each

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Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.

(e)           Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Sections 2.15 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.17(e) as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers , maintain a register on which it enters the name and address of each participant and the principal and interest amount of each participant’s interest in the Loans held by it (the “Participant Register”).  The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement notwithstanding any notice to the contrary.

(f)            Certain Pledges. Any Lender may at any time grant, pledge, hypothecate or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any grant, pledge, hypothecation or assignment to secure obligations to a Federal Reserve Bank, and none of the restrictions or conditions set forth in this Section 9.04 related to any grant, pledge, hypothecation or assignment shall apply to any such grant, pledge, hypothecation or assignment of a security interest; provided that no such grant, pledge, hypothecation or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such grantee, pledgee, hypothecatee or assignee for such Lender as a party hereto.

(g)           Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(h)           Resignation as Issuing Bank or Swingline Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitments and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Company and the Lenders, resign as Issuing Bank and/or (ii) upon 30 days’ notice to the Company, resign as Swingline Lender.  In the event of any such resignation as Issuing Bank or Swingline Lender, the Company shall be entitled to appoint from among the Lenders a successor Issuing Bank or Swingline Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as Issuing Bank or Swingline Lender, as the case may b e.  If Bank of America resigns as Issuing Bank, it shall retain all the rights, powers, privileges and duties of the Issuing

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Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto.  If Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.05.  Upon the appointment of a successor Issuing Bank and/or Swingline Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank or Swingline Lender, as the case may be, and (b) the successor Issuing Bank shall issue letters of credit in substitution for the Lette rs of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

SECTION 9.05 Survival.  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

SECTION 9.06 Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of ea ch of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 9.07 Severability.  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of

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such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08 Right of Setoff.  If one or more Events of Default shall have occurred and be continuing, each Lender shall have the right, in addition to and not in limitation of any right which any such Lender may have under Applicable Law or otherwise, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or its Affiliates to or for the credit or the account of any of the Borrowers against any of and all the obligations of any of the Borrowers now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and although such obligations may be unmatured. The rights of each Lender under this Section 9.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. No Credit Party will, or will permit its Participant to, exercise its rights under this Section 9.08 without the consent of the Administrative Agent or the Required Lenders.  ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES ANY OF THE OBLIGATIONS PRIOR TO THE EXERCISE THE RIGHT OF SETOFF UNDER THIS SECTION ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.

SECTION 9.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.

(a)           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).

(b)           Each of the Borrowers 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 any Loan 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 juris dictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any of the Borrowers or their respective properties in the courts of any jurisdiction.

(c)           Each of the Borrowers hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter

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have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby 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.

(d)           Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 9.10 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 LOAN 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 9.11 Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.12 Confidentiality.  Each of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below) except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors, and funding sources (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by Applicable Law or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, act ion or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Company or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrowers. For the purposes of this Section, “Information” means all information received from any of the Borrowers relating to the Borrowers or their business, other than any

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such information that is available to the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by any of the Borrowers; provided that, in the case of information received from a Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

SECTION 9.13 Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under Applicable Law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with Applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Cha rges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

SECTION 9.14 Patriot Act.

Each Lender hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender to identify such Borrower in accordance with the Act.  Each Borrower is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used by the Borrowers, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in viola tion of the United States Foreign Corrupt Practices Act of 1977, as amended.

SECTION 9.15 Foreign Asset Control Regulations.

Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto (which for the avoidance of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the

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“Executive Order”) and (b) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)).  Furthermore, none of the Borrowers or their Affiliates (a) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (b) knowingly engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violative of any such order.

SECTION 9.16 Additional Waivers.

(a)           The Obligations are the joint and several obligation of each Loan Party. To the fullest extent permitted by Applicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender  to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Administrative Agent, the Co llateral Agent the Issuing Bank or any Lender.

(b)           The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Obligations and termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to assert any claim or de mand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all the Obligations and termination of the Commitments).

(c)           To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations and termination of the Commitments.  The Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to

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them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full and the Commitments terminated.  Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.

(d)           Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of its business, affairs, finances, and financial condition, and its ability to perform its Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto.  Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof.  Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan Parties. To the fullest extent permitted by Applicable Law, each Loan Party hereby expressly waives any duty of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to inform any Loan Party of any such information.

SECTION 9.17 No Advisory or Fiduciary Responsibility.

In connection with all aspects of each transaction contemplated hereby, the Loan Parties each acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the Agents, the Issuing Bank and the Lenders, on the other hand, and each of the Loan Parties is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the each Agent, Issuing Bank and Lender is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Agent, Issuing Bank or Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Loan Parties with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any of the Agents, Issuing Bank or Lenders has advised or is currently advising any Loan Party or any of its Affiliates on other matters) and none of the Agent, Issuing Bank or Lenders has any obligation to

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any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Agent, Issuing Bank and Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates, and none of the Agent, Issuing Bank or Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) none of the Agent, Issuing Bank and Lenders have provided or will provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.  Each of the Loan Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each of the Agents, Issuing Bank and Lenders with respect to any breach or alleged breach of agency or fiduciary duty.

SECTION 9.18 Press Releases.

The Company agrees that neither it nor its Affiliates will in the future issue any press releases or other public disclosure using the name of Administrative Agent or its Affiliates or referring to this Agreement or the other Loan Documents without at least two (2) Business Days’ prior notice to Administrative Agent and without the prior written consent of Administrative Agent unless (and only to the extent that) Company is required to do so under Applicable Law (including, without limitation, under the reporting requirements of the Securities and Exchange Commission or other Governmental Authority).  Each Loan Party consents to the publication by Administrative Agent or any Lender of advertising material relating to the financing transactions contemplated by this Agreement using any Loan Party’s name, product photographs, logo or trademark. Administrative Agent or such Lend er shall provide a draft at least five (5) Business Days in advance of any advertising material to the Company for review and comment prior to the publication thereof. Administrative Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.

SECTION 9.19 Existing Credit Agreement Amended and Restated

Upon satisfaction of the conditions precedent to this Agreement in Section 4.01, (a) this Agreement shall amend and restate the Existing Credit Agreement in its entirety, (b) the rights and obligations of the parties under the Existing Credit Agreement shall be subsumed within and be governed by this Agreement; provided, however, that each of the Borrowers, each Agent, each Lender and each Issuing Bank hereby agrees that (i) each of the “Loans” (as such term is defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement on the Restatement Effective Date shall, for purposes of this Agreement, be included as Loans hereunder; (ii) each “Letter of Credit” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement on the Restatement Effective Date shall be a Letter of Credit hereunder, (iii)  all Obligations of the Borrowers under the Existing Credit Agreement shall remain outstanding, shall constitute continuing Obligations secured by the Collateral, and this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of such Obligations, and (iv) all references to the Existing Credit Agreement in any

134

Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof.

[SIGNATURE PAGES FOLLOW]

135

THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC., as a Borrower
By:
	Name:	William Moss
	Title:	Vice President and Treasurer
EACH OF THE BORROWERS LISTED
ON ANNEX A HERETO
By:
	Name:	William Moss
	Title:	Vice President
EACH OF THE BORROWERS LISTED
ON ANNEX B HERETO
By:
	Name:	William Moss
	Title:	Senior Vice President

[Credit Agreement]

Annex A

APW SUPERMARKETS, INC.

COMPASS FOODS, INC.

FOOD BASICS, INC.

HOPELAWN PROPERTY I, INC.

MCLEAN AVENUE PLAZA CORP.

SHOPWELL, INC.

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.

[Credit Agreement]

ANNEX B

PATHMARK STORES, INC.

AAL REALTY CORP.

MACDADE BOULEVARD STUART, LLC

BERGEN STREET PATHMARK, INC.

BRIDGE STUART INC.

EAST BRUNSWICK STUART INC.

LANCASTER PIKE STUART, LLC

PLAINBRIDGE LLC

UPPER DARBY STUART, LLC

[Credit Agreement]

LO-LO DISCOUNT STORES, INC., as a Borrower
By:
	Name:	Harry Austin
	Title:	Vice President

[Credit Agreement]

BANK OF AMERICA, N.A., as Administrative Agent, as Collateral Agent, and as a Lender
By:
	Name:	Stephen L. DeMenna
	Title:	Managing Director

[Credit Agreement]

THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender
By:
	Name:	Matthew DeFranco
	Title:	Vice President

[Credit Agreement]

BURDALE FINANCIAL LIMITED, as a Lender
By:
	Name:	David Grende
	Title:	Managing Director
By:
	Name:	Phillip Webb
	Title:	Vice President

[Credit Agreement]

NATIONAL CITY BUSINESS CREDIT, INC., as a Lender
By:
	Name:	Joseph Kwasny
	Title:	Managing Director

[Credit Agreement]

TEXTRON FINANCIAL CORPORATION, as a Lender
By:
	Name:	Pamela Petrick
	Title:	Senior Account Executive

[Credit Agreement]

WELLS FARGO RETAIL FINANCE LLC, as a Lender
By:
	Name:
	Title:

[Credit Agreement]

JPMORGAN CHASE BANK, N.A., as a Lender
By:
	Name:
	Title:

[Credit Agreement]

WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender

[Credit Agreement]

SCHEDULE A

Priming Jurisdictions

Virginia

Pennsylvania

Washington State

Alabama

Arizona

Arkansas

Florida

Iowa

Kentucky

Louisiana

Mississippi

New Mexico

North Carolina

Oregon

Texas

Utah

West Virginia

SCHEDULE B

Distribution Centers

Edison - GMDC

8-10B Court South

Sutton Kilmer Industrial Park

Edison, NJ 08817

SCHEDULE C

Financial and Collateral Reports

Monthly (within 15 days after each fiscal month)

Weekly Store Stock Movement Report (Stock Ledger)

Weekly Warehouse Inventory Report (Stock Ledger)

Inventory Analysis Report (Aging)

Store Activity Report

SCHEDULE 1.01 (A)

Existing Letters of Credit

See Annex A

SCHEDULE 1.01 (B)

Title Policy Endorsements

(as available in each jurisdiction)

Comprehensive

Survey Location

Access

Contiguity

Tax Lot Endorsement

Variable Rate

Revolving Credit

Last Dollar Endorsement

First Loss Endorsement

Tie-in Endorsement

Usury

EPA Lien

PZR Report

Creditor’s Rights

Due Execution

Arbitration Waiver

Doing Business

Address/Location

Subdivision

Leasehold

SCHEDULE 1.01 (C)

Principal Properties

92-10 Atlantic Avenue	Ozone Park	NY
50 Racetrack Road	East Brunswick	NJ
140 North MacDade Boulevard	Glenolden	PA
115 Belmont Avenue	Belleville	NJ

SCHEDULE 1.01 (D)

Immaterial Subsidiaries

A & P Tea Co. Services, Inc.

A&P Wine & Spirits, Inc.

ANP Sales Corp.

Amboy Road Development

APW Produce Company, Inc.

Barmat Corp.

Daitch Crystal Dairies, Inc.

Detroit Pure Milk Company

DLCH Acquisition Corporation

Felicity Historical Development Corporation

Four One Leasing Corp.

Gerard Avenue, Inc.

Greenlawn Land Development Corp.

Hamilton Property I, Inc.

Hempstead Marketplace, Inc.

Kohl’s Appleton, Inc.

Kohl’s Beloit, Inc.

Kohl’s Beverage Mart Grant Park, Inc.

Kohl’s Brookfield, Inc.

Kohl’s County Fair Liquors, Inc.

Kohl’s Cudahy, Inc.

Kohl’s Douglas, Inc.

Kohl’s Durand, Inc.

Kohl’s Fond du Lac, Inc.

Kohl’s Forest Home, Inc.

Kohl’s Fox Point, Inc.

Kohl’s Grange, Inc.

Kohl’s Lombardi, Inc.

Kohl’s Monona, Inc.

Kohl’s Neenah, Inc.

Kohl’s Oshkosh, Inc.

Kohl’s Park, Inc.

Kohl’s Ruby Isle, Inc.

Kohl’s Shorewood, Inc.

Kohl’s University, Inc.

Kohl’s Washington, Inc.

Kohl’s Waukesha, Inc.

Lake Grove Realty Corp.

LBRO Realty, Inc.

North Jersey Properties, Inc. I

North Jersey Properties, Inc. II

North Jersey Properties, Inc. IV

North Jersey Properties, Inc. V

North Jersey Properties, Inc. VI

Ridge Liquors, Inc.

Saratoga Street Liquors, Inc.

Southern Acquisition Corporation

Southern Development, Inc. of Delaware

2

Supermarket Distribution Service Corp.

Supermarket Distribution Service - Florence, Inc.

Supermarket Systems, Inc.

Tea Development Co., Inc.

The Great Atlantic & Pacific Company of Vermont, Inc.

Transco Service-Milwaukee

Waldbaum-College Point Center, Inc.

Wesley’s Quaker Maid, Inc.

W.S.L. Corporation

3

SCHEDULE 2.01

Lenders and Commitments

Lender	Term Loan Commitment		Tranche A Commitment		Tranche A-1 Commitment
Bank of America, N.A.	$	82,900,000	$	547,100,000	$	45,000,0000

SCHEDULE 3.01

Subsidiaries not in Good Standing

ANP Sales Corp.

Daitch Crystal Dairies, Inc.

DLCH Acquisition Corporation

Felicity Historical Development Corporation

Saratoga Street Liquors, Inc.

Super Fresh/Sav-A-Center, Inc.

SCHEDULE 3.06

Disclosed Matters

UFCW Employers Tri-State Health and Welfare Fund, et al v. SuperFresh Food Markets and The Great Atlantic & Pacific Tea Company, Inc. - US District Court for the District of New Jersey 04-1226 (RMB)

·This matter involves the allocation methodology for calculating health and welfare costs for retirees from a pooled risk to pro-rata cost per employer.  Because this increased cost was contrary to the relevant collective bargaining agreements, SuperFresh/A&P refused to pay and the instant litigation ensued.

·The Company has a reserve of approximately $1.0 for this matter.

Benedetto LaMarca, Dolores Guiddy and Stephen Tedesco, Individually, and on behalf of all others similarly situated as Class Representatives, against, The Great Atlantic & Pacific Tea Company, Inc., d/b/a  A&P, The Food Emporium and Waldbaum’s - Supreme Court of the State of New York, County of New York, Index No. 04601973.

·This matter involves an alleged Wage and Hour class litigation and is currently being investigated by the Company. The Company will establish an appropriate reserve, when and if necessary.

In re Pathmark Stores, Inc. Shareholder Litigation — Superior Court of New Jersey, Chancery Division (Class Action), Middlesex County, Docket No. MID-C-111-07.

·This matter involves a stockholder dispute in connection with the merger.  A settlement was reached and A&P agreed to pay to parties’ legal expenses of approximately $1.2 million.

SCHEDULE 3.12

Subsidiaries

* Not a Loan Party

Unless otherwise indicated, each of the Subsidiaries listed below is a Loan Party.

SUBSIDIARY	PERCENTAGE OWNED
A & P Tea Co. Services, Inc.*	100	%
A&P Wine & Spirits, Inc.*	100	%
A & P Bermuda Limited*	100	%
A & P Luxembourg S.à.r.l.*	100	%
ANP Properties I Corp.	100	%
ANP Sales Corp. *	100	%
Big Star Inc.	100	%
Compass Foods, Inc.	100	%
DLCH Acquisition Corporation*	100	%
Family Center, Inc.	100	%
Felicity Historical Development Corporation*	100	%
Food Basics, Inc.	100	%
Futurestore Food Markets, Inc.	100	%
Gerard Avenue, Inc.*	100	%
Hamilton Property I, Inc.*	100	%
Hopelawn Property I, Inc.	100	%
Kwik Save, Inc.	100	%
Limited Foods, Inc.	100	%
Lo-Lo Discount Stores, Inc.	100	%
North Jersey Properties, Inc. I*	100	%
North Jersey Properties, Inc. II*	100	%
North Jersey Properties, Inc. IV*	100	%
North Jersey Properties, Inc. V*	100	%
North Jersey Properties, Inc. VI*	100	%
Richmond Twice, Incorporated	100	%
Southern Acquisition Corporation*	100	%
Southern Development, Inc. of Delaware*	100	%
Super Fresh Food Markets of Maryland, Inc.	100	%
Super Fresh Food Markets of Virginia, Inc.	100	%

SUBSIDIARY	PERCENTAGE OWNED
Super Fresh/Sav -A-Center, Inc.	100	%
Super Market Service Corp.	100	%
Super Plus Food Warehouse, Inc.	100	%
Supermarket Distribution Service — Florence Inc.*	100	%
Supermarket Distribution Service Corp.*	100	%
Supermarket Distribution Services, Inc.	100	%
Supermarket Systems, Inc.*	100	%
Tea Development Co., Inc.*	100	%
The Great Atlantic & Pacific Tea Company of Vermont, Inc.*	100	%
Transco Service - Milwaukee, Inc.*	100	%
W.S.L. Corporation*	100	%
2008 Broadway, Inc.	100	%
Borman’s, Inc.	100	%
Bev, Ltd.	100	%
Detroit Pure Milk Company*	100	%
Farmer Jack Pharmacies, Inc.	100	%
Farmer Jack’s of Ohio, Inc.	100	%
S E G Stores, Inc.	100	%
Wesley’s Quaker Maid, Inc.*	100	%
Kohl’s Food Stores, Inc.	100	%
Kohl’s Appleton, Inc.*	100	%
Kohl’s Beloit, Inc.*	100	%
Kohl’s Beverage Mart Grant Park, Inc.*	100	%
Kohl’s Brookfield, Inc.*	100	%
Kohl’s Country Fair Liquors, Inc.*	100	%
Kohl’s Cudahy, Inc.*	100	%
Kohl’s Douglas, Inc.*	100	%
Kohl’s Durand, Inc.*	100	%
Kohl’s Fond du Lac, Inc.*	100	%
Kohl’s Forest Home, Inc.*	100	%
Kohl’s Fox Point, Inc.*	100	%
Kohl’s Grange, Inc.*	100	%
Kohl’s Lombardi, Inc.*	100	%
Kohl’s Monona, Inc.*	100	%

2

SUBSIDIARY	PERCENTAGE OWNED
Kohl’s Neenah, Inc.*	100	%
Kohl’s Oshkosh, Inc.*	100	%
Kohl’s Park, Inc.*	100	%
Kohl’s Ruby Isle, Inc.*	100	%
Kohl’s Shorewood, Inc.*	100	%
Kohl’s University, Inc.*	100	%
Kohl’s Washington, Inc.*	100	%
Kohl’s Waukesha, Inc.*	100	%
Ridge Liquors, Inc.*	100	%
The South Dakota Great Atlantic & Pacific Tea Company, Inc.	100	%
Montvale Holdings, Inc.	100	%
Super Fresh Food Markets, Inc.	100	%
Saratoga Street Liquors, Inc.*	100	%
Shopwell, Inc.	100	%
1046 Yonkers Ave. Corp.	100	%
111 North Avenue Realty Corp.	100	%
Clay-Park Realty Co., Inc.	100	%
Daitch Crystal Dairies, Inc.*	100	%
Delaware County Dairies, Inc.	100	%
Four One Leasing Corp.*	100	%
Gramatan Foodtown Corp.	100	%
Shopwell, Inc. (MA)	100	%
Shopwell, Inc. (New Jersey).	100	%
The Food Emporium, Inc. (NY)	100	%
The Food Emporium, Inc. (DE)	100	%
The Food Emporium, Inc. (NJ)	100	%
The Wine Emporium, Inc.	100	%
Tradewell Foods of Conn., Inc.	100	%
APW Supermarkets Corporation	100	%
APW Supermarkets, Inc.	100	%
Waldbaum, Inc.	100	%
Amboy Road Development Corp.*	100	%
APW Produce Company, Inc.*	100	%
Barmat Corp.*	100	%

3

SUBSIDIARY	PERCENTAGE OWNED
Greenlawn Land Development Corp.*	100	%
Hempstead Marketplace, Inc.*	100	%
Lake-Grove Realty Corp.*	100	%
LBRO Realty, Inc.*	100	%
McLean Avenue Plaza Corp.	100	%
Spring Lane Produce Corp.	100	%
The Meadows Plaza Development Corp.	100	%
Waldbaum College Point Center, Inc.*	100	%
St. Pancras Too, Limited*	100	%
Pathmark Stores, Inc.	100	%
AAL Realty Corp.	100	%
Adbrett Corp.	100	%
Bergen Street Pathmark, Inc.	100	%
Bridge Stuart Inc.	100	%
East Brunswick Stuart LLC	100	%
Lancaster Pike Stuart, LLC	100	%
MacDade Boulevard Stuart, LLC	100	%
Milik Service Company, LLC	100	%
Plainbridge LLC	100	%
Supermarkets Oil Company, Inc.	100	%
Upper Darby Stuart, LLC	100	%

4

SCHEDULE 3.13

Insurance

Type of Coverage	Policy Term	Insurance Company	Policy Number
Aircraft Hull & Liability
Cessna 560XL (Citation Excel) (6.25% share) - managed by Net Jets	05/01/05-Until Cancelled	United States Aircraft Insurance Group	SIHL1-609E
Cessna 560XL (Citation Excel) (6.25% share) - managed by Net Jets	5/1/06-Until Cancelled	National Indemnity Company	90SRD101997
Falcon 900 - managed by Jet Aviation	4/1/07-08	Illinois National Insurance Co.	GM1852800-04
Non-Owned Aircraft	04/01/07-08	National Union Fire Insurance Co. of Pittsburgh, P.	AV1852806-04
Automobile Liability	7/15/07-08	American Home Assurance Co.	1607017 (VA), 1607018(AOS), 1607019 (MA)
Foreign Commercial Auto Liability	9/23/07-08	Insurance Co. of State of Pa.	WR10001470
Crime	1/31/07-1/31/08	St. Paul Fire & Marine Insurance Co.	429CF0620
Directors & Officers Liability
Primary	11/7/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	000731854
1st excess layer	11/7/07-08	Federal Insurance Company	8181-2244
2nd  excess layer	11/7/07-08	Twin City Fire Insurance Company	00DA011573007
3rd excess layer	11/7/07-08	St. Paul Mercury Insurance Company	EC09001501
A-Side DIC	11/7/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	734683
Employed Lawyers Prof. Liability	12/27/06-07	Executive Risk Specialty Insurance Company	8168-8045
Commercial General Liability
Commercial General Liability	07/15/07-08	American Home Assurance Co.	1595459
Commercial General Liability (Insured)	07/15/07-08	American Home Assurance Co.	1595458
Marine Open Cargo	06/01/03 - Open	Indemnity Insurance Company of North America	498419

Type of Coverage	Policy Term	Insurance Company	Policy Number
Pension Trust Liability
Primary	11/7/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	000731956
1st Excess Layer	11/7/07-08	Twin City Fire Insurance Company	00IA011577107
2nd Excess Layer	11/7/07-08	Zurich American Insurance Company	FLC9215654-02
3rd  Excess Layer	11/7/07-08	Federal Insurance Company	8170-4537
Special Risk	04/03/07-10	National Union Fire Insurance Co. of Pittsburgh, Pa.	647-8204
Pollution
Pollution and Remediation Legal Liability - Gretna, La. RR Crossings	09/13/04-09/13/09	Indian Harbor Insurance Company (XL)	PEC0017177
Pollution Legal Liability and Cost Cap - Tenafly, NJ	11/16/01-11	Commerce & Industry Insurance Co.	PLS/CCC 808-67-73
Pollution Legal Liability (Horseheads)	3/30/00-10	American Int’l Specialty Lines Ins. Co.	PLS476 1893
Property
Primary	3/31/07-08	Lexington Insurance Company	7478431
1st Layer	3/31/07-08	Lloyd’s London (GEP)	GEP1830
	3/31/07-08	American Empire Surplus Lines Ins. Co.	7MP24631
	3/31/07-08	Lloyd’s London	WB0700311
	3/31/07-08	ACE- Westchester	D36053264001
	3/31/07-08	Landmark American Insurance Company	LHD351970

2

Type of Coverage	Policy Term	Insurance Company	Policy Number
2nd Layer	3/31/07-08	Lloyd’s London	WB0700322
	3/31/07-08	Commonwealth Insurance Company	US 6823
	3/31/07-08	Integon Specialty Insurance Company	XIN32451
3rd  Layer	3/31/07-08	Lloyd’s London	WB0700375
	3/31/07-08	Integon Specialty Insurance Company	XIN32451
	3/31/07-08	Lloyd’s London	WB0700340
1st, 2nd & 3rd Layers	3/31/07-08	Montpelier Re	MANCX70711-10
2nd & 3rd Layer	3/31/07-08	Landmark American Insurance Company	LHD351971
Boiler & Machinery	3/31/07-08	Continental Casualty Company	BM1098544514
Terrorism (Scheduled Locations)	3/31/07-08	Lloyd’s of London Companies	823/E07RQ24688
Umbrella Liability
1st Layer	07/15/07-08	National Union Fire Insurance Co. of Pittsburgh	BE 9835093
2nd Layer	07/15/07-08	American Guarantee & Liability Insurance Co.	AEC-8355061-12
2nd Layer	07/15/07-08	Federal Insurance Co.	79665337
2nd Layer	07/15/07-08	XL Insurance America, Inc.	US00010450LI07A
Workers Compensation/Employers Liability
Self-Insured Program - “All Other States”	07/15/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	464-57-39
Self-Insured Program - WI	07/15/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	464-57-40
Insured Program - DC, NJ, SD	07/15/07-08	American Home Assurance Co.	1616678

3

Type of Coverage	Policy Term	Insurance Company	Policy Number
Insured Program - CT	07/15/07-08	American Home Assurance Co.	1616676
Insured Program - NY	07/15/07-08	Illinois National Insurance Co.	1616677
Workers Compensation/Employers Liability
Self-Insured Program - “All Other States”	07/15/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	464-57-39
Self-Insured Program - WI	07/15/07-08	National Union Fire Insurance Co. of Pittsburgh, Pa.	464-57-40
Insured Program - DC, NJ, SD	07/15/07-08	American Home Assurance Co.	1616678
Insured Program - CT	07/15/07-08	American Home Assurance Co.	1616676
Insured Program - NY	07/15/07-08	Illinois National Insurance Co.	1616677

4

SCHEDULE 3.15(b)

UCC Filings

Debtor Name	Filing State
The Great Atlantic & Pacific Tea Company, Inc.	MD
APW Supermarkets, Inc.	NY
Compass Foods, Inc.	NY
Food Basics, Inc.	DE
Hopelawn Property I, Inc.	DE
Lo-Lo Discount Stores, Inc.	TX
McLean Avenue Plaza Corp.	NY
Shopwell, Inc.	DE
Super Fresh Food Markets, Inc.	DE
Super Fresh/Sav -A- Center, Inc.	DE
Super Market Service Corp.	PA
Super Plus Food Warehouse, Inc.	DE
Tradewell Foods of Conn., Inc.	CT
Waldbaum, Inc.	NY
Pathmark Stores, Inc.	DE
AAL Realty Corp.	NY
Bergen Street Pathmark, Inc.	NJ
Bridge Stuart Inc.	NY
East Brunswick Stuart LLC	DE
Lancaster Pike Stuart, LLC	DE
MacDade Boulevard Stuart, LLC	DE
Plainbridge LLC	DE
Upper Darby Stuart, LLC	DE
ANP Properties I Corp.	DE
Big Star Inc	GA
Family Center, Inc.	DE
Futurestore Food Markets, Inc.	DE
Kwik Save, Inc.	PA
Limited Foods, Inc.	DE
Montvale Holdings, Inc.	NJ
Richmond Twice, Incorporated	DE
Super Fresh Food Markets of Maryland, Inc.	MD
Super Fresh Food Markets of Virginia, Inc.	DE
Supermarket Distribution Services, Inc.	DE
2008 Broadway, Inc.	NY
1046 Yonkers Ave. Corp	NY
111 North Avenue Realty Corp.	NY
Clay-Park Realty Co., Inc.	NY
Delaware County Dairies, Inc.	NY
Gramatan Foodtown Corp.	NY
Shopwell, Inc.	MA

Shopwell, Inc. (New Jersey)	NJ
The Food Emporium, Inc.	NY
The Food Emporium, Inc.	DE
The Food Emporium, Inc.	NJ
APW Supermarket Corporation	DE
The Meadows Plaza Development Corp.	NY
Borman’s, Inc.	DE
Bev, Ltd.	DE
Farmer Jack Pharmacies, Inc.	MI
Farmer Jack’s of Ohio, Inc.	OH
S E G Stores, Inc.	DE
Kohl’s Food Stores, Inc.	WI
The South Dakota Great Atlantic & Pacific Tea Co., Inc.	SD
The Wine Emporium, Inc.	CT
Spring Lane Produce Corp.	NY
Adbrett Corp.	DE
Milik Service Company, LLC	VA
Supermarkets Oil Company, Inc.	NJ

2

SCHEDULE 3.15(c)

Intellectual Property Filings

Security Agreement to be recorded in the Trademarks Division of the United States Patent & Trademark Office.

SCHEDULE 5.01

Internet Addresses

www.pathmark.com

www.mipathmark.com

Domain Name	Status	Expiry Date	Auto Renewal	Registration Service Provider Contact	Registrant Email Tech	Registrant Email Admin	OPENRS
apmetro.com	Reserved	7/15/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
approduction.com	Reserved	10/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
apsupermarket.com	Active	4/17/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
aptea.com	Active	12/22/2007	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
apteaforms.com	Active	7/26/2008	No	domains@idyia.com	fhardy@ripnet.com	fhardy@ripnet.com	No
aptealink.com	Active	4/11/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	noc@igxglobal.com	domain.admin@aptea.com	No
aptealink.net	Reserved	4/11/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	noc@igxglobal.com	domain.admin@aptea.com	No
apteametrony.com	Reserved	3/4/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	dnsadmin@igxglobal.com	dnsadmin@igxglobal.com	No
apteauniversity.com	Reserved	9/26/2008	No	customerservice@networksolutions.com	ariemman@aptea.com	customerservice@ networksolutions.com	No
atlanticregionjobs.com	Reserved	2/11/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	noc@igxglobal.com	schillingg@aptea.com	No
bonussavingsclub.com	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
bonussavingsclub.net	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
bonussavingsclub.org	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	schillingg@aptea.com	Yes
farmerjack.com	Active	6/9/2009	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
farmerjackfoods.com	Reserved	3/3/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	dnsadmin@igxglobal.com	dnsadmin@igxglobal.com	No
farmerjackgoodliving.com	Reserved	9/8/2007	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
farmerjackgoodliving.net	Reserved	9/8/2007	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
farmerjackgoodliving.org	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	schillingg@aptea.com	Yes
farmerjackgoodlivingonline.com	Reserved	3/4/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	dnsadmin@igxglobal.com	No
farmerjackgoodlivingonline.net	Reserved	9/8/2007	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
farmerjackgoodlivingonline.org	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	schillingg@aptea.com	Yes
foodbasics.com	Active	2/5/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	kellyc@aptea.com	kellyc@aptea.com	No
foodbasicsusa.com	Active	6/20/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	dnsadmin@IGXGlobal.com	dnsadmin@IGXGlobal.com	No
food-basics-usa.com	Reserved	3/25/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	noc@igxglobal.com	schillingg@aptea.com	No
freshobsessed.com	Active	5/7/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	dnsadmin@igxglobal.com	kellyc@aptea.com	No
freshobsessedusa.com	Reserved	10/24/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
gaptea.com	Reserved	2/7/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.tech@aptea.com	No
gaptea.net	Reserved	2/7/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.tech@aptea.com	No
goodlivingonline.com	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
goodlivingonline.net	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
goodlivingonline.org	Reserved	9/8/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	schilling@aptea.com	Yes
kohlsfood.com	Reserved	2/5/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes

savacenter.com	Active	10/25/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	dnsadmin@igxglobal.com	dnsadmin@igxglobal.com	No
sav-a-center.com	Reserved	2/7/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	noc@igxglobal.com	dnsadmin@igxglobal.com	No
sav-a-centers.com	Reserved	9/28/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
superfoodmartne.com	Active	4/3/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
superfoodmart-ne.com	Reserved	8/5/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
superfreshfood.com	Active	2/5/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
thebarnmarkets.ca	Reserved	6/29/2008	No		dns@omiragroup.com	kellyc@aptea.com	No
thefoodemporium.com	Active	2/5/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
thefoodemporiumshoponline.com	Active	6/2/2010	Yes	wetzelm@aptea.com	customerservice@networksolutions.com		Yes
waldbaums.com	Active	2/14/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
waldbaumsfood.com	Reserved	2/6/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
werefreshobsessed.com	Reserved	10/24/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes
wevegotjobsnow.com	Reserved	7/18/2008	Yes	Pasdar, Babak bpasdar@igxglobal.com	domain.tech@aptea.com	domain.admin@aptea.com	Yes

2

SCHEDULE 5.14(a)

DDA Accounts

Bank	Account #	A/C Name	Type
Bank of America
100 Federal Street	0154104381	A&P	Concentration/Depository
Mail Code: MA5-100-09-09	4054013938	A&P	Pharm Lbox 23747
Boston, MA 02110
Bank of New York
101 Barclay Street 19W	6105810847	A&P	Depository
Bank of New York	6302391880	Food Basics	Depository
	6301374397	A&P Liquor	Depository
	6301374915	A&P dba Waldbaums	Depository
	6301374338	A&P dba Food Emporium	Depository
Citibank
666 5th Ave Fl. 3	9961533720	Liquor	Depository
New York, NY 10103	9961533501	A&P	Depository
	9961533579	Waldbaums	Depository
	9961533608	Superfresh	Depository
	9961533632	Food Basics	Depository
	9961533667	Food Emporium	Depository
	9961533691	Sav-a-Center	Depository (scheduled to be closed)
Wachovia Bank (First Union)
401 S. Tryon Street, 10th Floor	2100003505374	SuperFresh (PA)	Depository
Mail Code NC5710	2100006157612	SuperFresh (MD)	Depository
Charlotte, NC 28288-5710	2014183845286	SuperFresh (PA)	Coinstar
JP Morgan Chase Bank
1 Chase Manhattan Plaza 7th floor	323-072348	A&P	Depository
New York, NY 10081	323-017436	A&P	Concentration/Depository
LaSalle Bank Midwest NA
2600 W. Big Beaver Road	1054023973	A&P	Consol LBOX account
Troy, MI 48084		A&P Corp R/E Sub Ten	lockbox 6434
		A&P Corporate	lockbox 6426

Bank	Account #	A/C Name	Type
		A&P Real Estate	lockbox 6430
		A&P SMS	lockbox 6437
		A&P Metro	lockbox 6449
		A&P Food Emporium	lockbox 6453
	1054515334	Coupon Lockbox	lockbox 5618
BB&T (FCNB) 22-951
PO Box 200	5150821144	A&P	Depository
Wilson, NC 27894
National Bank & Trust 13-892
PO Box 351	52050009	A&P	Depository
Norwich, NY 13815-0351
Banc of America Securities LLC	24900531	A&P	Collateral Account
Client Investment Strategies	292627	A&P	Investment (scheduled to be closed)
1633 Broadway, 27th Floor
NY1-633-27-01
New York, NY 10019
The Reserve
1250 Broadway	69953511	A&P	Investment
32nd Floor	80517695	A&P	Investment
New York, NY 10001
Merril Lynch
2 World Financial Center		A&P	CP Investments
38th Floor
New York, NY 10281
Salomon Smith Barney
399 Park Avenue, 6th Floor		A&P	CP Investments
New York, NY 10022
Bank of America	9429400374	Pathmark	Mac Account
100 Federal Street	9429400382	Pathmark	Credit Card

2

Bank	Account #	A/C Name	Type
Boston, MA 02110	9429400411	Pathmark	EDS/Deluxe
	9429400390	Pathmark	NYCE Account
	9392854726	Pathmark	BOA Dominion
	9429400403	Pathmark	BOA Dominion ACH
	9429400729	Pathmark	BOA Central
	9429400681	Pathmark	Medicaid
	9429400673	Pathmark	Coinstar
	9429400710	Ptmk	RE Holding Acct
	003812670434	Milik Service Company	Milik Service Company
	003812670670	Pathmark	Lock Box - 33602
	9429400665	Pathmark	Lock Box - 33374
	290126	Pathmark	MMF investments
	22331902	Pathmark	Investments - Securities
Citibank	106029432	Pathmark	Concentration
666 Fifth Avenue	63818440	Pathmark	Depository
3rd Floor	63818520	Pathmark	Depository
New York, NY 10103	63818600	Pathmark	Depository
	63818790	Pathmark	Depository
	63818870	Pathmark	Depository
	83558148	Pathmark	Depository
	5913810	Pathmark	Depository
	106029192	Pathmark	Depository
	106029176	Pathmark	Depository
	83559730	Pathmark	Depository
	106029184	Pathmark	Depository
	106036080	Pathmark	Depository
	106029218	Pathmark	Depository
	12866311	Pathmark	Depository
	12866354	Pathmark	Depository
	106029226	Pathmark	Depository
	12866397	Pathmark	Depository
	106034234	Pathmark	Depository
	106029234	Pathmark	Depository
	16036692	Pathmark	Depository
	12866549	Pathmark	Depository
	106029259	Pathmark	Depository
	12866792	Pathmark	Depository
	106029267	Pathmark	Depository
	12866573	Pathmark	Depository
	106029275	Pathmark	Depository
	12866821	Pathmark	Depository
	12866434	Pathmark	Depository
	106029317	Pathmark	Depository
	106029325	Pathmark	Depository
	12866928	Pathmark	Depository
	12866952	Pathmark	Depository
	12866629	Pathmark	Depository
	106029358	Pathmark	Depository
	106029374	Pathmark	Depository
	12866688	Pathmark	Depository
	106029382	Pathmark	Depository

3

Bank	Account #	A/C Name	Type
	12866477	Pathmark	Depository
	106029390	Pathmark	Depository
	12866506	Pathmark	Depository
	83558180	Pathmark	Depository
	106031958	Pathmark	Depository
	106038078	Pathmark	Depository
	63780710	Pathmark	Depository
	106038102	Pathmark	Depository
	63780665	Pathmark	Depository
	106031164	Pathmark	Depository
	106029408	Pathmark	Depository
	106029416	Pathmark	Depository
	83558260	Pathmark	Depository
	106036965	Pathmark	Depository
	119105054	Pathmark	Depository
	119105450	Pathmark	Depository
	12866696	Pathmark	Depository
	12866725	Pathmark	Depository
	12866768	Pathmark	Depository
North Fork Bank	4084001751	Pathmark	Concentration
15 Lincoln Park Plaza	4084001769	Pathmark	Depository
Lincoln Park, NJ 07035	4084001777	Pathmark	Depository
	4084001785	Pathmark	Depository
	4084001793	Pathmark	Depository
	4084008087	Pathmark	Depository
	4084008095	Pathmark	Depository
	4084008103	Pathmark	Depository
	4084008111	Pathmark	Depository
	4084008129	Pathmark	Depository
	4084008137	Pathmark	Depository
	4084008145	Pathmark	Depository
	4084008152	Pathmark	Depository
	4084008160	Pathmark	Depository
	4084008178	Pathmark	Depository
	4084008186	Pathmark	Depository
	4084008194	Pathmark	Depository
	4084008202	Pathmark	Depository
	4084008210	Pathmark	Depository
	4084008228	Pathmark	Depository
	4084008327	Pathmark	Depository
	4084008335	Pathmark	Depository
	4084008343	Pathmark	Depository
	4084008350	Pathmark	Depository
	4084008368	Pathmark	Depository
	4084008376	Pathmark	Depository
	4084008384	Pathmark	Depository
	4084008392	Pathmark	Depository
	4084008400	Pathmark	Depository
	4084008418	Pathmark	Depository
	4084008426	Pathmark	Depository

4

Bank	Account #	A/C Name	Type
	4084008434	Pathmark	Depository
	4084008442	Pathmark	Depository
	4084008459	Pathmark	Depository
	4084008467	Pathmark	Depository
	4084008475	Pathmark	Depository
	4084008483	Pathmark	Depository
	4084008491	Pathmark	Depository
	4084008509	Pathmark	Depository
	4084008517	Pathmark	Depository
	4084008525	Pathmark	Depository
	4084008533	Pathmark	Depository
	4084009051	Pathmark	Depository
	4084008913	Pathmark	Depository
	4084008541	Pathmark	Depository
	4084009069	Pathmark	Depository
	4084009200	Pathmark	Carteret Cafereria
	4084008301	Pathmark	Crime Stoppers
	12866768	Pathmark	Depository
	4084009077	Pathmark	Depository
	4084009085	Pathmark	Depository
	4084008558	Pathmark	Depository
	4084008566	Pathmark	Depository
	4084008574	Pathmark	Depository
	4084008921	Pathmark	Depository
	4084008939	Pathmark	Depository
	4084009093	Pathmark	Depository
	4084009101	Pathmark	Depository
	4084008947	Pathmark	Depository
	4084009119	Pathmark	Depository
	4084009127	Pathmark	Depository
	4084009135	Pathmark	Depository
	4084009143	Pathmark	Depository
	4084008954	Pathmark	Depository
	4084008962	Pathmark	Depository
	5084009150	Pathmark	Depository
	4084009168	Pathmark	Depository
	4084008970	Pathmark	Depository
	4084008988	Pathmark	Depository
	4084008996	Pathmark	Depository
	4084008798	Pathmark	Depository
	4084008814	Pathmark	Depository
	4084008822	Pathmark	Depository
	4084008897	Pathmark	Depository
	4084008830	Pathmark	Depository
	4084008848	Pathmark	Depository
	4084008855	Pathmark	Depository
	4084008863	Pathmark	Depository
	4084008582	Pathmark	Depository
	4084008806	Pathmark	Depository
	5084008871	Pathmark	Depository
	4084009002	Pathmark	Depository
	4084008590	Pathmark	Depository

5

Bank	Account #	A/C Name	Type
	4084009010	Pathmark	Depository
	4084009028	Pathmark	Depository
	4084009036	Pathmark	Depository
	4084009044	Pathmark	Depository
	4084008889	Pathmark	Depository
	4084008905	Pathmark	Depository
One United Bank	1300543712	SGC Foundation	Depository
PO Box 541
Roxbury, MA 02119-0541
PNC Bank	8102690352	Pathmark We Care Fund	Real Estate Holding
Two Tower Center	8011578269	Glendolden Stuart	Real Estate Holding
East Brunswick, NJ 08816	8011578277	E. Brunswick Stuart	Real Estate Holding
	8011578285	Lancaster Pike Stuart	Real Estate Holding
	8011578293	Upper Darby Stuart	Real Estate Holding
Foreign Subsidiary Bank Accounts
The Bank of NT Butterfield & Son Ltd	20-006-124-237518-100	A&P Bermuda LTD	C$ Account
65 Front Street
Hamilton HM 12 AX, Bermuda
ING Luxembourg Bank	IBAN LU240141337045603110	A&P Luxembourg Sarl	C$ Account
52 Route d’Esch
L - 2965 Luxembourg
TD Securities	5G 9840A	A&P Luxembourg Sarl	C$ Account
77 King St. West, 17th Floor
Toronto, Ontario M5K 1A2

6

SCHEDULE 5.14(b)

Credit Card Arrangements

BUSINESS	CONTACT	ADDRESS
Credit/Debit Card Processors
American Express	Anita Pai	Via Email
Concord/Buypass	Yone Simpson	2240 Newmarket Parkway, Marietta, GA 30067
NYCE Corporation	Donna Fowler	One Harmon Meadow Boulevard,   Secaucus, NJ 07094
Discover	Jill Adkins	2402 West Beardsley Road, Phoenix, AZ 85027
First Data	Deborah Becker	2240 Newmarket Parkway, Marietta, GA 30067

SCHEDULE 5.14(c)

Third Party Insurance Payors

Company	Street	City	State	PostalCode
4D Pharmacy Management	2520 Industrial Row Drive	Troy	MI	48084
AARP Health Options
Access Health
aClaim	6530 West Campus Oval, Ste 250	New Albany	OH	43054
ACS / Consultec Inc./ ACS State Healthcare PBMS	365 Northridge Rd Ste 400	Atlanta	GA	30350
ADAP(NYS)
Advanced Health Systems/BMS
Aetna	11675 Great Oaks Way, Mail Stop F-350	Alpharetta	GA	30022
Aetna Network Management	151 Farmington Avenue, MA61	Hartford	CT	06156
Aetna Pharmacy Management	151 Farmington Ave., RE62	Hartford	CT	06156
Affordable Medicine Solutions, LLC
Agelity	Attn:  Phil Escaldi,  555 Broad Hollow Road	Melville	NY	11747
Agelity	115 Broad Hollow Rd., Ste. 325	Melville	NY	11747
AlaGap
Alliance HealthCard
Allwin Data
Allwin Data
American Health Care	2217 Plaza Dr. Suite 100	Rocklin	CA	95765
AmerisourceBergen
ANTHEM/WellPoint
APS
Argus	1300 Washington St.	Kansas City	MO	64105-1433
Atlantic Prescription Services	115 West 6th Street	Wahoo	NE	68066
AUTORX
AVIA
BC/BS of Alabama	450 Riverchase Parkway East	Birmingham	AL	35236-1570
BC/BS of DE
BC/BS of MI
BCBS IL
BeneScript Services Inc.	P O Box 921229	Norcross	GA	30010-1229
BeyondRx	8717 W 110th St Ste 420	Overland Park	KS	66225
BioScrip	PO Box 163639	Columbus	OH	43216-3639
Blue Cross Blue Shield of Arizona	Mail Stop A117, PO Box 13466	Phoenix	AZ	85002-3466
Blue Shield of California
Brooks Pharmacy
CaremarkPCS (all bins)
CENTRUS / PSCNY
CareFirst BlueCross BlueShield and CareFirst BlueChoice	c/o CEM Consulting PO Box # 384, 10105 E. Via LInda, # 103	Scottsdale	AZ	85258

Choice RX Inc.	PO Box 700266	Tulsa	OK	74170-0266
CIGNA
Cigna Healthcare/Rx Prime	900 Cottage Grove Road, Routing S128	Hartford	CT	06152
Consolidated Prescription Services
CPB/Catalyst Rx
CPB/Catalyst Rx A HealthExtras Company
CRK	9501 E Shea Blvd / MC112	Scottsdale	AZ	85260-6719
CRK BIN 610029
CRKPCS
CRKPCS
CRKPCS/004336, 610415
Cypress Care	PO Box 2829	Suwanee	GA	30024
DestinationRx	2245 Enterprise Parkway East	Twinsburg	OH	44087
DirectCompRx
EBRx Inc./Catalyst Rx	250 East Broad Street Ste 600	Columbus	OH	43215
EHIM
EMDEON	1283 Murfreesboro Road	Nashville	TN	37217
Employer Health Options (EHO)	2801 West Ave T	Temple	TX	76504
Envision Pharmaceutical Services
Envision/Rx Options, Inc.	2181 E. Aurora Rd. Suite 201	Twinsburg	OH	44087
EPIC NY
eRx Network, LLC	84 Peachtree Road, Suite 300	Asheville	NC	28803
eRx Network, LLC	301 Commerce Street Suite 3150	Fort Worth	TX	76102-4102
ESI - NPA
ESI / VRX / DPS	13900 Riverport Dr	Maryland Heights	MO	63043
ESI / VRX / DPS	One Express Way	St. Louis	MO	63121
Express Scripts
FingerLakes BC/BS	165 Court St	Rochester	NY	14647
FIRST HEALTH (PRN, MMD 5.1, MMI, MICHEPIC)	750 Riverpoint Drive	West Sacramento	CA	95605
Geisinger Health Plan
GPP
HAP
HAP/Kids Care MI
Health Net Pharmaceutical Services	P.O. Box 3530	Rancho Cordova	CA	95741-3530
Health Plus of Michigan
Health Resources Inc.(PPSI)
HealthExtrasRx
HealthTrans, LLC	6061 S. Willow Drive, Suite 125	Greenwood Village	CO	80111
Healthtrans/CuraScript
HIP/NY
HIP/NY/VYTRA	7 West 34th Street	New York	NY	10001

2

Horizon NJ Health
Humana	500 West Main St	Louisville	KY	40202
HUMANA Military Healthcare Services / TRICARE (CHAMPUS Region 3 & 4)			MS
IHC Health Plans	4646 W Lake Park Blvd,  Suite N3	Salt Lake City	UT	84120
Immediate Pharmacy Services
Independent Health	511 Farber Lakes Drive	Buffalo	NY	14221
Innoviant, Inc	PO BOX 8082	WAUSAU	WI	54402-8082
Integrated Pharmacy Services
Interplan (AME)
Interplan Health	4301 Darrow Rd	Stow	Ohio	44224
Kaiser Permanente Mid-Atlantic
Keystone/AmeriHealth Mercy Health	200 Stevens Drive	Philadelphia	PA	19113
Keystone/Amerihealth Mercy Health Plan
Louisiana Business Group on Health(LBGH)
MAMSI	10200 Old Columbia Rd., Suites A & B	Columbia	MD	21046
MAXOR PLUS
McKesson Healthcare Solutions	9700 North 91st Street, Ste 232	Scottsdale	AZ	85258
Medco Health / PAID	8111 Royal Ridge Parkway	Irving	TX	75063
Medco Health / PAID	100 Parsons Pond Drive, Mailstop: E2-6	Franklin Lakes	NJ	07417
Medical Matrix	6421 Camp Bowie Blvd., Ste. 200	Fort Worth	TX	76116
MedImpact	10680 Treena Street 5th Floor	San Diego	CA.	92131
MedTrak	6310 Lamar Avenue,  Suite 230	Overland Park	KS	66202
MemberHealth
National Health Network(formerly UMPB)
Navitus Health Solutions	5 Innovation Court, Suite B	Appleton	WI	54914
NCPDP
NJHCA / ESI	P.O. Box 570	West Paterson	NJ	07424
NMHC Rx
NMHC Rx/Centrus	23 British American Blvd	Latham	NY	12110
NPS	PO Box 407	Boystown	NE	68010
NPS/National Pharmaceutical Services
Ochsner
OPN/Open Pharmacy Network(same as RxA)
OPUS Health (Matrix Quality Care)	1324-106 Motor Parkway	Hauppauge	NY	11749
PA PACE
PBM Plus	300 Techne Center Drive, Suite B	Milford	OH	45150
PerformRx	200 Stevens Drive	Philadelphia	PA	19113
Pharm Data Mgmt/PDMI	940 Windham Court, Suite 1	Boardman	OH	44512

3

PHARMA SCRIPT
PharmaCare / PharmaCare ES	695 George Washington Hwy	Lincoln	RI	02865
Pharmaceutical Care Network	9343 Tech Center Drive, Suite 200	Sacramento	CA	95826-2592
Pharmacy Benefit Administrators
Pharmacy Benefit Direct
Pharmacy Healthcare Solutions	968 Perry Highway	Pittsburgh	PA	15237
Pharmacy Services Group
PHARMA-LINK
PharmaSure
Phsi
Physicians Plus
PPSC
Premier Pharmacy Plan	P.O. Box 5824	Spartanburg	SC	29304
Prescription Solutions/RxSolutions	5995 Plaza Dr.	Cypress	Ca.	90630
Prime Therapeutics	P.O. Box 64812	St. Paul	MN	55121
Prime Therapeutics
ProCare PBM	3090 Premiere Parkway, Suite 100	Duluth	GA	30097
Provider Medical Pharmaceutical
Prudent Rx
Regence Group, The	P O Box 12625 MS S2P	Salem	OR	97309
Restat	P.O. Box 758	West Bend	WI	53095
RESTAT/Garden State - POPS
Rx America	221 Charles Lindbergh Dr	SLC	UT	84116
RxCare	8400 Coral Sea Street NE	Minneapolis	MN	55449
RxOptions	2181 E. Aurora Road, Suite 201	Twinsburg	OH	44087
SavRx	224 North Park Avenue	Fremont	NE	68025
SavRx Prescription Services/Clarity Pharmacy Services
Scrip Card
ScripNet	Post Office Box 29030	Las Vegas	Nevada	89126-3030
Script Care, Ltd.	6380 Folsom Dr	Beaumont	TX	77706
ScriptSave (MSC)	333 E. Wetmore Rd, 4th Flr	Tucson	AZ	85728-6048
Sentara Health Management	4417 Corporation Lane	Virginia Beach	VA	23462
Serve You Prescription Plan
Sierra Healthcare Options
SMCRx/Avia	4535 Missouri Flat Rd  Suite 200	Placerville	CA	95667
Smith Premier Pharmacy Plan
Student Ins. Solutions
SXC Health Solutions, Inc. / SXC ComCoTec HXB	8444 North 90th Street, Suite 100	Scottsdale	AZ	85258
Teamsters Local Welfare Fund #35
Third Party Solutions
TMESYS	5483 West Waters Ave., Ste. 1200	Tampa	FL	33634
Total Script	10901 W. 120th Ave Suite 175	Broomfield	CO	80021
TPS	P O Box 17124	Memphis	TN.	38187-0124
UNICARE Pharmacy Access

4

Plan
Universal Rx
US Script	2425 West Shaw Ave	Fresno	CA	93711
Wellpoint/Anthem
WELLPOINT/Anthem 610053	PO BOX 4488	Woodland Hills	CA	91365-9707
WHI / WHI Health Initiatives	2275 Half Day Road, Suite 250	Bannockburn	IL	60015
WISE-Rx

5

SCHEDULE 5.14(d)(iii)

Blocked Accounts

Bank	Address	Account #	A/C Name	Type
Bank of America	100 Federal Street Mail Code: MA5-100-09-09 Boston, MA 02110	0154104381	A & P	concentration/off dep
JP Morgan Chase Bank	1 Chase Manhattan Plaza 7th Floor New York, NY 10081	323-017436	A & P	concentration (ach & wires)
Bank of America	100 Federal St	9392854726	Pathmark	BOA Dominion
	Boston, MA 02110	9429400403	Pathmark	BOA Dominion ACH
		9429400729	Pathmark	BOA Central
Citibank	666 Fifth Avenue 3rd Floor New York, NY 10103	106029432	Pathmark	Concentration
North Fork Bank	15 Lincoln Park Plaza Lincoln Park, NJ 07035	4084001751	Pathmark	Concentration

SCHEDULE 5.14(i)

Disbursement Accounts

Bank/Address	Account #	A/C Name	Type
Bank of New York	8900477954	A&P	Bank of New York
101 Barclay Street 19W	0300940004	A&P	Payroll Funding
New York, NY 10286	0300916467	A&P	Payroll Checks
One Wall Street	0300916913	A&P	A/P Checks
	6301375474	A&P	A/P EFT
			NYC Metro Card
JP Morgan Chase Bank	323-017436	A&P	Concentration/Depository/Wires & ACHs
1 Chase Manhattan Plaza 7th floor	323-044891	A&P	Tax Payments
New York, NY 10081
Lake Region State Bank	455646	A&P	Consolidated Returned Checks
c/o Solutran
3600 Holly Lane, Suite 60
Minneapolis, Minnesota 55447
Wachovia Bank	2000200161064	SuperFresh (PA)	Lottery
401 S. Tryon Street, 10th Floor
Mail Code NC5710
Charlotte, NC 28288-5710
Bank of America	0154104381	A&P	Concentration/Depository/LC payments
100 Federal Street	4888088641	A&P	Lottery
Mail Code: MA5-100-09-09	3751297444	A&P	Lottery (scheduled to be closed)
Boston, MA 02110
Bank of America	9429400657	Pathmark	NYS Payroll Tax
100 Federal Street	9429400702	Pathmark	EFT Payroll Tax
Boston, MA 02110	4296015304	Pathmark	Payroll Funding/Dir Dep
	68813	Pathmark	Payroll Check Disb
	2220010344	Pathmark	Risk Payable
	9428418230	Pathmark Store Inc.	Payroll Check Disb
	2220010093	Pathmark Payables	Pathmark Payables
	9429400737	Pathmark	Plainbridge
Lake Region Bank	454993	Pathmark	Consolidated check returns
51 Main Stret
New London, MN
Bank of America	9429400657	Pathmark	NYS Payroll Tax
100 Federal Street	9429400702	Pathmark	EFT Payroll Tax
Boston, MA 02110	4296015304	Pathmark	Payroll Funding/Dir Dep
	68813	Pathmark	Payroll Check Disb

Bank/Address	Account #	A/C Name	Type
	2220010344	Pathmark	Risk Payable
	9428418230	Pathmark Store Inc.	Payroll Check Disb
	2220010093	Pathmark Payables	Pathmark Payables
	9429400737	Pathmark	Plainbridge

2

SCHEDULE 6.01

Existing Indebtedness

9 3/8% Senior Quarterly Interest Bonds due 2039

9.125% Notes due 2011

Mortgages and other notes, as of February 2007, in an aggregate amount of $1.4 million Obligations under capital leases described on Annex B-1 and Annex B-2 attached hereto Long term real estate liabilities described on Annex C attached hereto.

Loan and Security Agreement,  dated December 20, 2004, between Pathmark and Harlem Congregations Community Improvement, Inc. The amount outstanding as of November 3, 2007 was $231,191, carries a rate of 2% and is due February 1, 2010.

LDFF Loan Agreement, dated February 25, 1998, between Pathmark and the New Jersey Economic Development Authority. The amount outstanding as of November 3, 2007 was $959,839, carries a rate of 5% and is due March 1, 2018

Term Loan Agreement, dated February 25, 1998, between Pathmark and Cooperative Business Assistance Corporation. The amount outstanding as of November 3, 2007 was $22,888, carries a rate of 7% and is due March 1, 2008.

Commercial Premium Finance Agreement, dated September 29, 2006, between Pathmark and AFCO Premium Credit LLC.

Commercial Insurance Premium Finance and Security Agreement with Cananwill, Inc., dated August 24, 2006 and October 2, 2006, respectively.

Judgment Lien - Chao v. The Great Atlantic & Pacific Tea Company, Inc. et al., dated March 19, 2004 for the amount of $242,595

SCHEDULE 6.02

Existing Liens

Liens described on Annex D attached hereto.

SCHEDULE 6.04

Existing Investments

Investments permitted by Section 3.05 of the Security Agreement not exceeding U.S. $5 million in aggregate book value consisting of, among other things, employee loans, seller notes in respect of assets sold prior to the date hereof, equity interests in joint ventures and foreign government securities.

The following subsidiary joint venture investments:

Loan Party	Joint Venture Investment	Percentage Owned
Borman’s, Inc.	The Heights	33-1/3%
Waldbaum, Inc.	McLean Plaza Associates	51%
	Middle Village (Queens, NY)	50%
	Oceanside Plaza	50%
Southern Development Inc.	Sandwich ’86 Associates	50%
	Yarmouth ’86 Associates	50%
	Baton Rouge ’84 Associates	50%

In the normal course of business, the Company has assigned to third parties various leases related to former businesses that the Company sold as well as former operating the Company supermarkets (the “Assigned Leases”). When the Assigned Leases were assigned, the Company generally remained secondarily liable with respect to these lease obligations. As such, if any of the assignees were to become unable to continue making payments under the Assigned Leases, the Company could be required to assume the lease obligation.  As of January 28, 2006, the Company had a liability on its consolidated balance sheet of $2.5 million, which represents certain guarantees attributable to the Company’s secondary liability in connection with two Assigned Leases assigned after December 31, 2002.  The Company’s records indicate that approximately sixty (60) additional Assigned Leases may still be in effect; however, the Company is unable to determine whether or not such Assigned Leases remain in effect or have been terminated by the assignees or their successors.  Assuming that each Assigned Lease is still in effect and that each respective assignee became unable to continue to make payments under an Assigned Lease, an event the Company believes to be remote, management estimates its maximum potential obligation would be approximately $100 million.

SCHEDULE 6.10

Existing Restrictions

Restrictions relating to the payment of dividends and/or incurrence of liens by the subsidiary joint ventures referred to in Schedule 6.04.

Annex A Pg.1

Annex A pg. 1 Summary page of Outstanding Letters of Credit for Pathmark and A&P as of Nov. 30, 2007 reported by Bank of America, N.A. L/C No. Applicant Ref. Beneficiary Name Issue Date Expiry Date USD amount outstanding: Applicant: PATHMARK STORES, INC. 64090437 VALENTINE/EASTER07 FAR EAST BROKERS AND CONSULTANTS, 10/03/2007 02/05/2008 273,277.50 64090438 SPRING SUMMER 2008 FAR EAST BROKERS AND CONSULTANTS, 11/14/2007 04/05/2008 462,624.50 Documentary Letters of Credit 735,902.00 Applicant: PATHMARK STORES INC. on behalf of Grocery Haulers, Inc 64146382 00000064146382 ACE AMERICAN INSURANCE COMPANY 04/15/2005 04/12/2008 2,053,785.00 Standby Letters of Credit 1 2,053,785.00 Applicant: PATHMARK STORES INC. 64090527 TOPCO TOPCO ASSOCIATES LLC 09/01/2006 09/01/2008 700,000.00 64090528 ARCH INSURANCE ARCH INSURANCE COMPANY 09/20/2006 09/20/2008 170,000.00 64135240 00000064135240 SAFECO INSURANCE COMPANY OF AMERIC 04/01/2005 10/25/2008 18,336,400.00 64135243 00000064135243 RLI INSURANCE COMPANY 04/01/2005 04/02/2008 775,000.00 64135245 00000064135245 NATIONAL UNION FIRE INSURANCE 04/01/2005 10/25/2008 500,000.00 64135247 00000064135247 CHAIR, WORKERS COMPENSATION BOARD 04/01/2005 11/06/2008 15,288,002.00 64135249 00000064135249 GROCERY HAULERS, INC. 04/01/2005 01/29/2008 1,271,486.00 64135253 00000064135253 CHAIR, WORKERS COMPENSATION BOARD 04/01/2005 02/11/2008 11,401,730.00 64135254 00000064135254 LIBERTY MUTUAL INSURANCE COMPANY 04/01/2005 09/27/2008 998,125.00 64135256 00000064135256 SELF INSURANCE DIVISION, BUREAU OF 04/01/2005 02/11/2008 9,000,000.00 64135262 00000064135262 U.S. FIDELITY AND GUARANTY CO. C/O 04/01/2005 07/08/2008 1,250,000.00 64144564 00000064144564 C & S WHOLESALE GROCERS, INC. 04/01/2005 02/02/2008 5,000,000.00 68006082 00000068006082 GROCERY HAULERS, INC 05/04/2005 05/02/2008 18,728,514.00 68008379 00000068008379 COMMONWEALTH OF PENNSYLVANIA 08/30/2005 08/31/2008 455,186.00 Standby Letters of Credit 14 83,874,443.00 Standby 85,928,228.00 Doe 735,902.00 Total Pathmark: 86,664,130.00 Applicant: THE GREAT ATLANTIC AND PACIFIC TEA TD605500080117-7 5S8IPAPMAG57061I PAPER MAGIC GROUP( HONG KONG)/LTD/ 11/9/2007 11 Dec 2007 31,482.00 TD60550008012I-7 5S8IEARTHEAST08 EARTHWOOD TOYS/LIMITED/29TH FLOOR 10/31/2007 11 Dec 2007 47,010.00 TD605500080116-7 5S81EASTER08 HASBRO TOY GROUP DIRECT IMPORTS 10/24/2007 04 Jan 2008 12,892.57 TD605500080120-7 5S8IMGPWREASTER MAGIC POWER CO., LTD. 10/24/2007 14 Dec 2007 56,006.00 TD621200004511-7 5S8ISONEASTEVAL S-ONE INDUSTRIES LTD. 10/29/2007 29 Dec 2007 181,697.01 00000064402357 5S81BESTEASTER08 BEST EVER 10/23/2007 04 Dec 2007 34,820.00 Documentary Letters of Credit 363,907.58 Applicant: THE GREAT ATLANTIC AND PACIFIC TEA 00000068001652 5S8S PARKING LOT BOROUGH OF MONTVALE 25 Oct 2007 30 Oct 2008 419,043.84 00000068001603 5S8S-WC PA BUREAU OF WORKERS’ COMPENSATION O 29 Dec 2005 29 Dec 2007 15,400,000.00 00000068001638 5S8S WCNY CHAIR, WORKERS’ COMPENSATION BOARD 13 Mar 2006 13 Mar 2008 43,267,410.00 00000068001640 5S8SWCNYSHOPWEL CHAIR, WORKERS’ COMPENSATION BOARD 13 Mar 2006 13 Mar 2008 11,004,034.00 00000068001650 5S8S WCMI DEPARTMENT OF LABOR AND ECONOMIC 20 Sep 2006 20 Sep 2008 3,000,000.00 00000068001648 5S8S ENTERGY GLF ENTERGY GULF STATES, INC. 21 Jun 2006 21 Jun 2008 80,000.00 00000068001647 5S8S ENTERGY LA ENTERGY LOUISIANA, LLC 21 Jun 2006 21 Jun 2008 500,000.00

Annex A Pg 2

Annex A pg. 2 00000068001646 5S8S ENTERGY NO ENTERGY NEW ORLEANS, INC. 21 Jun 2006 21 Jun 2008 257,500.00 00000068001651 5S8S - GECC GE COMMERCIAL FINANCE BUSINESS 19 Dec 2006 19 Dec 2007 3,753,946.00 00000068001637 5S8S WCGA GEORGIA SELF-INSURERS GUARANTY 26 Jan 2006 26 Jan 2008 590,000.00 00000068001627 5S8S BRIDGEPORT LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 17 Mar 2008 338,518.00 00000068001628 5S8S BRIDGEPORT1 LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 17 Mar 2008 33,375.00 00000068001629 5S8S BRIDGEPORT2 LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 17 Mar 2008 338,518.00 00000068001630 5S8S BRIDGEPORT3 LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 17 Mar 2008 172,480.00 00000068001631 5S8S BELLE LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 10 Apr 2008 263,169.00 00000068001632 5S8S BELLE1 LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 10 Apr 2008 518,195.00 00000068001633 5S8S BELLE2 LASALLE BANK NATIONAL ASSOCIATION 28 Feb 2006 10 Apr 2008 518,195.00 00000068001644 5S8S LA LABOR LOUISIANA DEPARTMENT OF LABOR 19 May 2006 19 May 2008 800,000.00 00000068001649 5S8S WCMD MARYLAND WORKERS’ COMPENSATION 01 Aug 2006 01 Aug 2008 7,500,000.00 00000068001642 5S8S NATUNINFIRE NATIONAL UNION FIRE INSURANCE 13 Feb 2006 14 Feb 2008 13,547,083.00 00000068001641 5S8S STATE OF MI STATE OF MICHIGAN 20 Jun 2006 20 Jun 2008 1,000,000.00 00000068001639 5S8S WCSTPAUL TRAVELERS CASUALTY AND SURETY 10 Mar 2006 13 Mar 2008 10,214,000.00 00000068001608 5S8S HOBOKEN WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 359,208.00 00000068001616 5S8S VALLEY2 WELLS FARGO BANK, N A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 213,775.00 00000068001617 5S8S HUNTINGTON2 WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 471,348.00 00000068001618 5S8S VALLEY3 WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 118,751.00 00000068001619 5S8S LINDENHURST WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 490,560.00 00000068001621 5S8S LINDENH1 WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 490,560.00 00000068001623 5S8S WHITE OAK WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 397,461.00 00000068001624 5S8S WHITE OAK1 WELLS FARGO BANK, N.A., AS TRUSTEE 30 Jan 2006 14 Feb 2008 397,461.00 00000068001612 5S8S VALLEY WELLS FARGO BANK, NA, AS TRUSTEE 30 Jan 2006 14 Feb 2008 12,000.00 00000068001604 5S8S BENENSON WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 127,428.00 00000068001606 5S8S HUNTINGTON WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 187,880.00 00000068001607 5S8S HUNTINGTON1 WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 471,348.00 00000068001611 5S8S HOBOKEN1 WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 359,208.00 00000068001613 5S8S VALLEY1 WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 213,775.00 00000068001626 5S8S BENENSON1 WELLS FARGO BANK, NA, AS TRUSTEE, 30 Jan 2006 14 Feb 2008 424,234.00 00000068001605 5S8S CENTRAL ISL WELLS FARGO MINNESOTA BANK, NA, AS 30 Jan 2006 14 Feb 2008 351,244.66 00000068001614 5S8S CENTRAL IS WELLS FARGO MINNESOTA BANK, NA, AS 30 Jan 2006 14 Feb 2006 2,359,039.00 00000068001615 5S8S HOWARD BEAC WELLS FARGO MINNESOTA BANK, NA, AS 30 Jan 2006 14 Feb 2008 424,234.00 00000068001620 5S8S CENTRAL 1S1 WELLS FARGO MINNESOTA BANK, NA, AS 30 Jan 2006 14 Feb 2008 2,359,039.00 00000068001643 5S8S WESTCHESTER FIRE INSURANCE COMPAN 28 Mar 2006 28 Mar 2008 13,534,897.00 Standby Letters of Credit 43 137,778,917.50 Total A&P: 137,642,825.08 Grand Total: A&P and Pathmark: 224,306,955.08

Annex B-1

Annex B-1 The Great Atlantic & Pacific Tea Company, Inc. Capital Lease Obligations By Location U.S $ Was As of September 8, 2007 Reason for Failure Accounts 250301, 250302 and 273101 Liability Referenced Capital Lease Obligations Status Written Off Open Available Sub-let Assigned Total A 23-850 Frederick MD Open 3,523,823 - - - 3,523,823 7d. B 34-701 West Paterson NJ Open 11,140,161 - - - 11,140,161 7d. C 36-707 Second Ave NYC Open 2,744,331 - - - 2,744,331 7c. D 36-720 Ave of America NYC Open 279,428 - - - 279,428 7d. E 47-074 Gradual LA Open 2,414,687 - - - 2,414,687 7d. F 55-625 Commerce Town Center Assigned No - - - 337525 337,525 7d. G 555-0001 Borman’s Available No - 9,627,126 - - 9,627,126 7d. H 92-567 Melvindale MI Sublet No - - 18,569 - 18,569 7c.and d. 55-626 East Points MI Term Yes - - - - - 55-568 MI Term Yes - - - - - Sub-total Capital Leases 20,102,399 9,627,126 18,569 337,525 30,085,619 7 c. The lease term is equal to 75% or more of the estimated economic useful of the leased property. 7 d. The present value of the minimum lease payment (excluding executory costs) equals or exceeds 90% of the fair market value of the leased property.

Annex C 1

Annex C 1 The Great Atlantic & Pacific Tea Company, Inc. Long-Term Real Estate Liabilities By Location U.S.$ Was As of September 8, 2007 Reason for Failure Liability Status Written Off Open Available Sub-let Assigned Total EITF 97-10 Locations 001-0000-0000-271903 027-7212 Riverhead NY Open 4,074,078 - - - 4,074,078 027-7217 Greenlawn NY Open 6,485,521 - - - 6,485,521 027-7241 North Patchoque NY Open 2,809,856 - - - 2,809,856 027-7253 Centereach NY Open 4,600,537 - - - 4,600,537 027-7699 Deer Park NY Open 4,972,030 - - - 4,972,030 032-4653 Lodi NJ Open 2,794,906 - - - 2,794,908 034-3621 Vernon Twp NJ Open 3,709,249 - - - 3,709,249 034-3684 Sussex NJ Open 3,517,123 - - - 3,517,123 034-3698 Flanders NY Open 4,488,347 - - - 4,488,347 034-3826 Clark NJ Open 4,208,682 - - - 4,208,682 025-3927 Wall Twp N J Open 1,830,298 - - - 1,830,298 038-3510 Philadelphia PA Open 2,034,773 - - - 2,034,773 022-2897 Parkville MD Open 1,628,807 - - - 1,628,807 025-2725 Philadelphia PA Open 2,667,018 - - - 2,667,018 025-5404 Hightstown NJ Open 4,396,382 - - - 4,396,382 047-7075 New Orleans LA Open 3,627,942 - - - 3,627,942 055-5600 Waterford MI Avl No 3,038,701 - - 3,038,701 055-5609 South Lyon MI Assigned No - - 2,014,429 2,014,429 055-5614 Troy MI Assigned No - - 3,340,410 3,340,410 055-5623 Sterling Heights Ml Assigned No - - 3,322,508 3,322,508 055-5717 Ypsilanti Ml Avl No 5,797,871 - - 5,797,871 025-5728 Philadelphia Pa CIP 6,421,169 - - - 6,421,169 Sub-total EITF 97-10 Locations 64,266,719 8,836,572 - 8,677,347 81,780,638 Non-Qualifying Sale Leasebacks 001-0000-0000-271901 and 271902 (Bel Harbor and Fort Lee are in 271902) 027-3572 Southhampton NY Open 7,790,407 - - - 7,790,407 One Tenant 027-7270 Whitestone NY Open 14,187,860 - - - 14,187,860 Shopping Center 027-7616 Belle Harbor NY Open 8,230,937 - - - 8,230,937 Shopping Center. Reclassed in FY01 Reaudit per PWC from Qto NQ 027-7658 Long Beach NY Open 25,222,767 - - - 25,222,767 Shopping Center 027-7688 Massapeque NY Open 12,323,837 - - - 12,323,837 No tenants 070-7275 College Point NY Open 20,750,000 - - - 20,750,000 Month to month tenant lease 036-3710 Fort Lee NJ Open 6,000,000 - - - 6,000,000 Reclssed in FY01 Reaudit per PWC from Q to NQ; 2 tenants 036-3740 Greenwich CT Open 7,255,814 - - - 7,255,814 No tenants 036-3669 Hastings NY Open 7,565,302 - - - 7,565,302 No tenants 034-3677 Mahwah NJ Open 29,311,337 - - - 29,311,337 Shopping Center 034-3486 Blairstown NJ Open 10,177,314 - - - 10,177,314 Shopping Center 034-3688 Randolph NJ Open 17,052,593 - - - 17,052,593 Shopping Center 034-3908 Ortley Beach NJ Open 11,318,681 - - - 11,318,681 Shopping Center 025-5474 North Wildwood NJ Open 6,377,674 - - - 6,377,674 No tenants 025-5476 Cape May Court Hs NJ Open 13,760,884 - - - 13,760,884 Shopping Center 047-7082 Covington LA Open 4,486,745 - - - 4,486,745 No tenants 047-7083 Slidell LA Open 3,652,000 - - - 3,652,000 Na tenants 047-7084 Gretna LA Open 3,925,902 - - - 3,925,902 No tenants 038-3502 Paterson NJ Open 4,410,977 - - - 4,410,977 No tenants 038-3503 Coyle St Brooklyn NY Open 7,031,977 - - - 7,031,977 No tenants

Annex C 2

Annex C 2 092-3568 Starting Heights Mi Sublet No - - 4,002,532 - 4,002,532 in store bank; store closed 7/05; leased to P&P 7/7/05 for 20 years. Sub-total Non Qualifying Sale Leasebacks 220,833,008 - 4,002,532 - 224,835,540 Landlord Reimbursement Locations 001-0000-0000-289412-000-0000 001-0702 Montvale Open 3,764,111 - - - 3,764,111 001-0703 Clifton Open 115,798 - - - 115,798 070-2101 Baltimore MD Open 1,350,839 - - - 1,350,839 025-2468 Westmont NJ Open 1,774,773 - - - 1,774,773 025-5258 Yardley PA Open 1,094,888 . - - 1,094,888 025-5363 Walnut Port Pa Open 1,226,352 - - - 1,226,352 025-5460 Mt Holly NJ Open 646,953 . - - 646,953 025-5494 Plainboro NJ Open 2,220,838 - - - 2,220,838 027-3813 Tottensviffe NY Open 1,002,729 - - - 1,002,729 027-7247 Douglaston NY Open 115,167 - - - 115,167 027-7283 Levittown NY Open 927,333 - - - 927,333 027-7285 Beth Page NY Term - - - - - 027-7289 Jericho NY Open 2,551,536 - - - 2,551,536 027-7610 Carle Place NY Open 520,816 - - - 520,816 034-3659 Wooddiff Lake NJ Open 3,758,224 - - - 3,758,224 034-3760 Edison NJ Open 472,143 - - - 472,143 034-3801 Warrenville NJ Open - . - - - 070-9761 West New York NJ Open 1,431,126 - - - 1,431,126 047-4056 Metaire LA Open 1,405,805 - - - 1,405,805 Krystyna, I think we will be able to reverse these 2 amounts in period 10p 047-7060 Metaire LA Open 858,395 - - - 858,395 055-5607 St Clair Shores Ml Assigned Yes - - - - - 055-5620 Southgate Ml Avl Yes - - - - 055-5640 Northville MI Assigned Yes - - - - - 055-5650 Dearborn Ml Assigned Yes - - - - - 055-5680 Detroit Ml Avl Yes - - - - - 055-5685 Mt Clemens Ml Avl Yes - - - - 055-5713 Roseville Ml Assigned Yes - - - - 055-5677 Riverview Ml Avl Yes - - - - - Sub-total Landlord Reimbursement Locations 25,237,826 - - - 25,237,826 Grand Total 330,439,952 18,463,698 4,021,101 9,014,872 331,854,004 Total SAC (highlighted orange bold amounts) 20,371,456 Qualifying Sale Leasebacks 001-0000-0000-289504 (from Paterson down, account 289506) 070-7639 East Meadow NY Open 1,903,009 - - - 1,903,009 522-305 Landover Sold - - - - - 070-3620 Midland Park NJ Open 188,052 - - - 188,052 522-0030 Baltimore Warehouse Terminated Yes - - - - - 527-0016 Central Islip Warehouse Assigned Yes - - - - - 070-7651 Howard Beach, NY Open 2,935,270 - - - 2,935,270 070-7236 Huntington, NY Open 2,874,783 - - - 2.874,783 070-2985 White Oak Md Loss - - - - - 070-3309 Valley Stream NY Open 1,732,730 - - . 1,732,730 070-7251 Lindenhurst NY Open 1,262,899 - - - 1,262,899 070-5477 Ocean City NJ Loss - - - - - 070-3406 Hoboken NJ Open 168,390 - - - 168,390 055-5709 Grosse Point Ml Assigned Sold at a loss - - - - -

Annex C 3

Annex C 3 013-3725 New Canaan Ct Open 1,789,283 - - - 1,789,283 013-1037 Bridqeport Ct Open 2,265,535 - - - 2,265,535 070-3867 Kenitworth NJ Loss - - - - - 070-7638 Farminqdale NY Open 3,316,570 - - - 3,316,570 070-3695 Closter NJ Loss - - - - - 070-3626 Tinton Falls NJ Open 165,715 - - - 165,715 002-0708 Paterson, NJ Office Build Closed Yes - - - - 036-9708 250 W. 90(th) St, New Yor Open 14,389,769 - - - 14,389,769 070-7238 Amboy Road Staten Islan Open 6,821,781 - - - 6,821,781 070-5247 Bustteton Avenue, PA Open 71,709 - - - 71,709 038-3508 (037-3602) Hackettstown Open 294,131 - - - 294,131 070-3125 Carmel NY Open 4,971,948 - - - 4,971,948 Balance as 45,151,574 - - - 45,151,574 of 9/6/07 45,151,574 G/L 522-0030 Baltimore Warehouse 9,204,021 (0) Difference 527-0016 Central Isllp Warehouse 7,269,832 002-0708 Paterson, NJ Office Build 863,641 17,337,494 a) Section 14.1(b)(i): Lessor can put the property to lessee for the Stipulated Loss Value (plus certain selling expenses) following damage or destruction to the property that cannot be rebuilt due to zoning restrictions. This is a prohibited from of continuing involvement under FAS 98. b) Section 14.5: Upon a condemnation where Applicable Law does not permit lessee to assert separate claims on condemnation proceeds for any of its Equipment and Personalty, lessee’s right to the Net Condemnation Award as it relates to its Equipment and Personalty cannot be subordinate to the repayment of the lessor’s indebtedness or else this would be a contingent form of collateral provided by lessee which is a prohibited form of continuing involvement c) Article 16 (Events and Defaults) and Section 17.1 (Remedies). Section 16 list bankruptcy and other events as potential defaults of the lease that is not within the control of the lessee. In addition, if a default under one of these provisions were to occur, the Lessee’s obligation under Section 17 of the lease would exceed the present value of the lessee’s remaining base rent payments discounted at lossee’s incremental borrowing rate, which is the maximum remedy al lessee can be obligated to pay upon an event of default not unilaterally within the lessee’s control. Therefore, the specifics of these provisions would preclude sale-leaseback acccounting.

ANNEX B-2

PATHMARK STORES INC.  GHI * P10 YTD

Lease

Description

Lessor

File

Begin

End

Term

Capital

Rate

Prd End

Add Flag

Term Flag

Booking Date

GHI99003A

39 REFRG. TRAILERS (1999)

G.E. CAPITAL

T

4/1/1999

3/31/2007

96

C

0.0685

11/30/2007

0

1

3/1/2006

GHI99004

60 DRY TRAILERS (1999)

G.E. CAPITAL

T

4/1/1999

3/31/2009

120

C

0.069002

11/30/2007

0

0

2/1/1999

PATHMARK STORES INC.   REAL ESTATE * P10 YTD

Lease

Description

Lessor

File

Begin

End

Term

Capital

Rate

Prd End

Add Flag

Term Flag

Booking Date

PR1751-04C

BOTANY PLAZA

P

4/1/1997

3/31/2017

240

C

0.10513

11/30/2007

0

0

10/1/2004

PR1802-A

NORTH BERGEN AMENDMENT

P

7/1/1996

6/30/2021

300

C

0.105

11/30/2007

0

0

12/1/2006

PR1861-C

FERRY STREET SMK

P

12/1/1995

11/30/2020

300

C

0.164818

11/30/2007

0

0

1/1/2005

PR1902-C

EDGEWATER COMMONS

P

7/1/1996

6/30/2016

240

C

0.105

11/30/2007

0

0

1/1/2005

PR1941

BERGENFIELD SALE/LEASEBACK

P

1/1/1989

12/31/2013

300

C

0.105

11/30/2007

0

0

0

PR2231A

BERGEN STREET

P

3/1/2004

7/31/2020

197

C

0.0735

11/30/2007

0

0

5/1/2004

PR2241

LYON’S PLAZA

P

6/1/1990

5/31/2015

300

C

0.1079

11/30/2007

0

0

0

PR2801

MONTCLAIR SMKT

P

5/1/1985

5/31/2010

301

C

0.14257

11/30/2007

0

0

0

PR2991

RAMSEY

P

12/1/1986

11/30/2011

300

C

0.20028

11/30/2007

0

0

7/1/1986

PR4401-04C

HILLSBOROUGH

P

4/1/2003

3/31/2023

240

C

0.0705

11/30/2007

0

0

10/1/2004

PR5121-C

LINDEN (STILES STREET)

P

2/1/1994

1/31/2019

300

C

0.181532

11/30/2007

0

0

1/1/2005

PR5324-04C

GRAYS FERRY SPMKT.

P

10/1/1995

11/30/2014

230

C

0.104999

11/30/2007

0

0

10/1/2004

PR5351

EDISON

P

11/1/1987

10/31/2012

300

C

0.12825

11/30/2007

0

0

10/1/1987

PR5471

BRISTOL SUPERMARKET

P

4/1/1989

3/31/2014

300

C

0.1

11/30/2007

0

0

0

PR55799007

BROAD & GLENWOOD #557 B&L

POSEL STATION ASSOCIATE

P

5/1/1999

4/30/2019

240

C

0.09

11/30/2007

0

0

5/1/1999

PR5711

MARLBORO SUPERMARKET

P

3/1/1983

2/29/2008

300

C

0.15

11/30/2007

0

0

0

PR5713

MARLBORO ENLARGEMENT

P

6/1/1995

2/29/2008

153

C

0.27674

11/30/2007

0

0

0

PR5761

HOWELL TOWNSHIP SUPERMARKE

P

10/1/1983

10/31/2008

301

C

0.12302

11/30/2007

0

0

0

PR5791

WALL SMKT

P

7/1/1987

6/30/2012

300

C

0.10918

11/30/2007

0

0

9/1/1987

PR5901

NEWARK DE SMKT

P

2/1/1983

1/31/2008

300

C

0.123395

11/30/2007

0

0

0

PR5931

DUPONT

P

5/1/1988

11/30/2011

283

C

0.1

11/30/2007

0

0

0

PR5933-04C

DUPONT HIGHWAY ENLARGEMENT

P

2/1/1993

11/30/2011

226

C

0.083098

11/30/2007

0

0

10/1/2004

PR6001

NEW BRENTWOOD

P

11/1/1991

11/30/2016

301

C

0.1

11/30/2007

0

0

0

PR60799014

KEW GARDENS B&L

NORSE AGUILAR REALTY

P

6/1/1999

5/31/2019

240

C

0.085

11/30/2007

0

0

8/1/1999

PR60999006

EAST HARLEM #609 B&L

E.H. ABYSSINIAN DEV.

P

4/1/1999

3/31/2024

300

C

0.082

11/30/2007

0

0

2/1/1999

PR6141

PATCHOGUE

P

5/1/1997

4/30/2022

300

C

0.132546

11/30/2007

0

0

5/1/1997

PR616200R1

SPRINGFIELD GRDS B&L REVIS

SPRINGNEX REALITY CORP

P

4/1/2000

3/31/2025

300

C

0.085

11/30/2007

0

0

5/1/2000

PR6191

ATLANTIC TERMINAL

P

11/1/1996

10/31/2021

300

C

0.105

11/30/2007

0

0

11/1/1996

PR6191-07

ATLANTIC TERMINAL REV.

P

11/1/2006

10/31/2021

180

C

0.105

11/30/2007

1

0

7/1/2007

PR6451

PIKE SLIP SUPERMARKET

P

1/1/1984

12/31/2008

300

C

0.15

11/30/2007

0

0

0

PR6471

BAY PLAZA- BARTOW AVE

P

11/1/1988

10/31/2013

300

C

0.105

11/30/2007

0

0

0

PR6471B

BAY PLAZA REVISION

P

1/1/1992

10/31/2013

262

C

0.21013

11/30/2007

0

0

0

PR6491-04C

NEW HYDE PARK

P

6/1/1996

5/31/2021

300

C

0.105

11/30/2007

0

0

10/1/2004

PR6531-D

BETHPAGE SUPERMARKET

P

2/1/2004

1/31/2021

204

C

0.077

11/30/2007

0

0

1/1/2005

PR66120

CROTONA PARK

MBD NEW HORIZONS LLC

P

7/1/2004

6/30/2022

216

C

0.068

11/30/2007

0

0

1/1/2005

PR6632

CENTEREACH PATHMARK

P

10/1/1995

9/30/2020

300

C

0.105

11/30/2007

0

0

11/1/1995

PR6672006B

CASTLE CENTER B & L

FC AQUISITIONS

P

7/1/2000

6/30/2020

240

C

0.105

11/30/2007

0

0

4/1/2004

PR6781A

ROSSVILLE

CJM ASSOCIATES, LLC

P

1/1/2002

12/31/2021

240

C

0.082769

11/30/2007

0

0

1/1/2003

PR6791B

AMBOY ROAD (NEW)

NBB DEVELOPMENT

P

8/1/2002

7/31/2022

240

C

0.0835

11/30/2007

0

0

1/1/2005

PATHMARK STORES INC.  EQUIPMENT * P10 YTD

Lease

Description

Lessor

File

Begin

End

Term

Capital

Rate

Prd End

Add Flag

Term Flag

Booking Date

PE00420073

VERIFONE PINPADS

IBM

P

8/1/2004

7/31/2008

48

C

0.066

11/30/2007

0

0

1/1/2005

PE00420076

ETHERNET HARDWARE

IBM

P

12/1/2004

11/30/2007

36

C

0.067

11/30/2007

0

1

1/1/2005

PE00420077

POS HILLSBOROUGH

IBM

P

3/1/2003

2/28/2007

48

C

0.057

11/30/2007

0

1

1/1/2005

PE00420078

POS - CROTONA

IBM

P

7/1/2004

6/30/2008

48

C

0.063

11/30/2007

0

0

1/1/2005

PE00420079

POS - BRADHURST

IBM

P

1/1/2005

12/31/2008

48

C

0.067

11/30/2007

0

0

1/1/2005

PE00430072

LOTUS SAMETIME SERVER

IBM

P

2/1/2005

7/31/2007

30

C

0.066

11/30/2007

0

1

2/1/2005

PE0043069A

S2EPS = PROJECT 8394S

IBM

P

2/1/2005

4/30/2007

27

C

0.075322

11/30/2007

0

1

2/1/2005

PE0441

COLOR COPIER - PRINT SHOP

KONICA MINOLTA CORP.

P

10/1/2005

9/30/2008

36

C

0.113741

11/30/2007

0

0

10/1/2005

PE112-07

JERSEY CITY F & E

MERILL LYNCH

P

11/1/2007

10/31/2011

48

C

0.070122

11/30/2007

1

0

11/1/2007

PE1140201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.062715

11/30/2007

0

1

1/1/2003

PE1250201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE1280201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE1280202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057042

11/30/2007

0

0

1/1/2003

PE1530201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE1550201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE1550202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057048

11/30/2007

0

0

1/1/2003

PE1750201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE1750202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057048

11/30/2007

0

0

1/1/2003

PE1800202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.060324

11/30/2007

0

0

1/1/2003

PE18101

ELMWOOD PARK F&E

MERRILL LYNCH CAPITAL

P

4/1/2003

9/30/2007

54

C

0.071046

11/30/2007

0

1

3/1/2003

PE1860201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.062716

11/30/2007

0

1

1/1/2003

PE1890201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.062715

11/30/2007

0

1

1/1/2003

PE1890202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.06032

11/30/2007

0

0

1/1/2003

PE190-07

EDGEWATER CMNS F&E

MERILL LYNCH

P

11/1/2007

10/31/2011

48

C

0.070125

11/30/2007

1

0

11/1/2007

PE1930201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.062716

11/30/2007

0

1

1/1/2003

PE194-07

BERGENFIELD F&E

MERILL LYNCH

P

11/1/2007

10/31/2011

48

C

0.070121

11/30/2007

1

0

11/1/2007

PE1960202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.05705

11/30/2007

0

0

1/1/2003

PE1980201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2000202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057046

11/30/2007

0

0

1/1/2003

PE2240202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.060319

11/30/2007

0

0

1/1/2003

PE2610202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057044

11/30/2007

0

0

1/1/2003

PE270-07

SOUTH ORANGE F&E

P

11/1/2007

10/31/2011

48

C

0.070122

11/30/2007

1

0

11/1/2007

PE2700201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2700202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057045

11/30/2007

0

0

1/1/2003

PE2820201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2840201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2860202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057041

11/30/2007

0

0

1/1/2003

PE2890201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2910202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057045

11/30/2007

0

0

1/1/2003

PE2920201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2930201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE2940202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057046

11/30/2007

0

0

1/1/2003

PE2970202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057043

11/30/2007

0

0

1/1/2003

PE2980201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE4230201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE43401

COLOR COPIER - OAK TREE

P

1/1/2006

12/31/2008

36

C

0.098

11/30/2007

0

0

1/1/2006

PE4360201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE4380201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE4500201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE4520201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE4520202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057034

11/30/2007

0

0

1/1/2003

PE5120201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5120202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057046

11/30/2007

0

0

1/1/2003

PE5260201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5270201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5290202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057043

11/30/2007

0

0

1/1/2003

PE532-07

GRAYS FERRY F&E

P

11/1/2007

10/31/2011

48

C

0.07013

11/30/2007

1

0

11/1/2007

PE5360201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5360202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057048

11/30/2007

0

0

1/1/2003

PE5380202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057047

11/30/2007

0

0

1/1/2003

PE5390202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057045

11/30/2007

0

0

1/1/2003

PE5460202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057042

11/30/2007

0

0

1/1/2003

PE5470202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057041

11/30/2007

0

0

1/1/2003

PE5500201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5510201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5510202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057

11/30/2007

0

0

1/1/2003

PE5530201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5530202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057048

11/30/2007

0

0

1/1/2003

PE5540202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057042

11/30/2007

0

0

1/1/2003

PE5570202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.082183

11/30/2007

0

0

1/1/2003

PE5580201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5610201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5630201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5630202A

CHECKSTANDS II

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057043

11/30/2007

0

0

1/1/2003

PE5640201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5640202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057045

11/30/2007

0

0

1/1/2003

PE567-07

FOLSOM F&E

P

11/1/2007

10/31/2011

48

C

0.070122

11/30/2007

1

0

11/1/2007

PE5670201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5690202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057045

11/30/2007

0

0

1/1/2003

PE5720201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5730201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5740201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5760201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5770201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5800201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5800202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057055

11/30/2007

0

0

1/1/2003

PE5810201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5860201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5860202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057081

11/30/2007

0

0

1/1/2003

PE5890201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5890202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057043

11/30/2007

0

0

1/1/2003

PE5900201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5910202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.060322

11/30/2007

0

0

1/1/2003

PE5930201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5930202A

CHECKSTANDS II

P

1/1/2003

12/31/2007

60

C

0.057029

11/30/2007

0

0

1/1/2003

PE5940201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.0595

11/30/2007

0

1

1/1/2003

PE5950201B

CHECKSTANDS

P

11/1/2002

10/31/2007

60

C

0.062718

11/30/2007

0

1

1/1/2003

PE6020201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6020202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057049	11/30/2007	0	0	1/1/2003
PE6030201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	11/1/2005
PE6030202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.05705	11/30/2007	0	0	11/1/2005
PE6070201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6080202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057042	11/30/2007	0	0	1/1/2003
PE6100201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6130202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057045	11/30/2007	0	0	1/1/2003
PE6140202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	1/1/2003
PE6150201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6190202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057048	11/30/2007	0	0	1/1/2003
PE6220202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057042	11/30/2007	0	0	1/1/2003
PE6230202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057041	11/30/2007	0	0	1/1/2003
PE6240202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057043	11/30/2007	0	0	1/1/2003
PE6250202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	1/1/2003
PE6270201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6270202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057037	11/30/2007	0	0	1/1/2003
PE6320201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6320202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	1/1/2003
PE6340202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057048	11/30/2007	0	0	1/1/2003
PE6370202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057046	11/30/2007	0	0	1/1/2003
PE6410201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6410202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057038	11/30/2007	0	0	1/1/2003
PE6420201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6420202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057041	11/30/2007	0	0	1/1/2003
PE6440201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6440202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.05705	11/30/2007	0	0	1/1/2003
PE6480202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057043	11/30/2007	0	0	1/1/2003
PE6490201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6490202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.05704	11/30/2007	0	0	1/1/2003
PE6530201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	11/1/2005
PE6530202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	11/1/2005
PE6610201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	11/1/2005
PE6610202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057046	11/30/2007	0	0	11/1/2005
PE6630201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
PE6630202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057035	11/30/2007	0	0	1/1/2003
PE6640201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003

PE6640202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057041	11/30/2007	0	0	1/1/2003
PE6670202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	1/1/2003
PE6680202A	CHECKSTANDS II	P	1/1/2003	12/31/2007	60	C	0.057044	11/30/2007	0	0	1/1/2003
PE6830201B	CHECKSTANDS	P	11/1/2002	10/31/2007	60	C	0.0595	11/30/2007	0	1	1/1/2003
Capital Leases not on FCS Admin system (but on GL)
For Period 9 YTD (ending November 3, 2007)
	Cottman
	Manahawkin
	Mt Vernon
	Eatontown
	Tenants -Rent Abatement

Fin Group	Asset Class	Rem Rent	Ttl Rent	Fair Value	Orig Oblig	Gross Asset	Accum Depr	Cur Oblig	LT Oblig	Accr Intr	Ppd Rent	Acr Gross Rent	Acr Oper Rent
		156,903	2,070,087	1,569,028	1,569,016	1,569,016	1,412,113	156,012	0	891	0	39,858	0
		366,496	1,881,360	1,334,400	1,334,399	1,334,399	1,040,831	155,990	187,105	1,973	0	145,660	0

Fin Group	Asset Class	Rem Rent	Ttl Rent	Fair Value	Orig Oblig	Gross Asset	Accum Depr	Cur Oblig	LT Oblig	Accr Intr	Ppd Rent	Acr Gross Rent	Acr Oper Rent
3		6,754,707	11,906,654	4,422,356	4,422,367	4,422,367	2,358,596	225,512	3,977,550	36,822	0	521,640	0
		21,983,690	38,674,407	4,300,182	4,234,756	4,234,756	1,933,872	86,325	4,153,030	37,094	0	1,280,675	841,190
		16,743,139	30,368,547	4,040,791	4,040,647	4,040,647	1,939,511	52,338	4,205,648	58,483	0	1,012,285	387,040
		14,907,174	31,867,816	4,445,517	4,445,704	4,445,704	2,537,756	231,871	3,896,174	36,120	0	1,367,806	822,500
3	3	7,764,191	28,345,950	5,139,054	5,139,038	5,139,038	3,888,538	360,162	3,132,364	30,560	0	1,002,039	410,480
		12,108,246	15,152,796	9,000,572	8,569,266	9,000,572	2,055,968	282,341	7,436,163	47,276	0	678,166	0
3	3	5,043,735	15,797,451	2,982,515	2,982,471	2,982,471	2,087,730	175,008	1,896,287	18,624	0	546,882	221,870
3	3	1,585,345	15,799,591	4,109,820	4,109,764	4,109,764	3,700,153	475,199	851,846	15,766	0	528,448	0
3	3	2,695,000	16,843,749	2,598,025	2,597,972	461,112	191,193	255,457	1,155,199	23,544	0	561,458	131,980
		7,864,344	9,753,840	5,000,000	4,999,967	4,999,967	1,166,659	115,651	4,555,242	27,442	0	337,410	0
		15,793,725	31,251,400	4,494,155	4,494,165	4,494,165	2,486,771	23,942	5,229,544	79,473	0	1,035,825	222,750
	4	3,432,492	8,214,590	3,310,007	3,309,996	3,309,996	2,101,128	207,202	2,194,412	21,014	0	374,655	0
3	3	4,269,737	20,238,625	3,729,548	3,729,614	3,729,614	2,996,123	331,296	1,792,855	22,702	0	701,606	236,440
4	3	4,753,890	16,139,750	3,451,323	3,451,311	3,451,311	2,576,979	249,125	2,220,716	20,582	0	586,900	182,820
4		7,704,714	12,818,700	3,158,207	3,158,163	3,158,163	1,355,378	79,922	2,647,959	20,459	0	502,620	234,130
3	3	122,250	10,510,200	2,545,039	2,544,847	2,544,847	2,519,399	119,256	0	1,491	0	407,500	0
3	4	23,289	1,151,235	316,825	316,825	316,825	310,612	22,255	0	513	0	77,630	0
3	3	357,603	9,171,696	2,761,717	2,761,725	2,761,725	2,660,798	336,550	0	3,450	0	325,093	0
3	3	2,157,054	11,270,350	3,758,988	3,759,003	3,759,003	3,069,853	300,735	1,390,496	15,387	0	392,192	0
4	3	57,333	8,312,001	1,723,214	1,723,218	1,723,218	1,711,730	38,393	0	395	0	286,667	91,733
4	3	2,126,460	11,659,358	2,827,947	2,827,946	2,827,946	2,348,295	256,274	941,367	9,980	0	443,013	139,260
	4	100,752	661,307	363,264	363,263	363,263	286,110	18,791	66,678	592	0	20,990	0
1	3	7,804,831	20,090,137	3,225,097	3,225,079	3,225,079	2,067,908	165,807	2,450,377	21,802	0	699,749	349,780
1		7,808,820	12,667,344	3,568,889	3,563,722	623,000	123,151	119,347	3,076,877	22,640	0	517,500	195,460
1		22,520,100	32,990,100	10,253,420	9,263,565	9,263,565	3,211,369	162,131	8,441,198	58,789	0	1,050,000	332,000
1		19,872,196	31,965,999	4,413,226	4,413,235	4,413,235	1,868,270	56,640	4,885,120	54,584	0	1,041,559	475,290
1		29,536,752	39,810,768	7,211,660	7,205,216	7,205,216	2,209,600	0	7,744,966	54,860	0	1,149,330	652,170
1		21,872,500	35,877,000	4,818,825	4,818,733	4,818,733	2,136,305	63,369	5,441,045	48,164	0	1,175,000	643,050

		-1,191,375	-1,245,000	1	-585,407	-585,407	-42,279	13,440	-606,829	-5,192	0	-53,625	0
1	3	554,827	12,384,900	2,222,972	2,222,972	2,222,972	2,126,643	334,163	30,161	4,554	0	426,790	121,410
1	3	9,944,642	34,252,723	6,316,225	6,316,234	6,316,234	4,821,392	511,490	4,582,111	44,569	0	1,266,833	427,600
1	3	1,768,027	4,653,391	526,385	526,393	526,393	383,744	54,806	775,425	14,538	0	207,051	37,180
		11,277,402	16,033,920	4,345,411	4,265,785	4,265,785	1,962,261	36,484	5,566,284	49,024	0	519,210	0
		7,707,886	9,292,034	4,871,236	4,872,269	4,872,269	1,098,649	56,291	4,605,060	29,910	0	344,380	0
		8,212,925	10,137,096	6,040,780	5,871,278	5,871,278	1,114,455	216,153	4,984,925	29,473	0	469,310	0
1	4	16,843,605	29,413,246	4,288,338	4,288,350	4,288,350	2,086,997	77,491	4,813,997	42,801	0	975,682	486,150
1		16,963,080	25,277,092	9,960,593	9,958,758	9,958,758	3,693,039	313,601	8,964,173	81,181	0	1,060,800	0
		22,878,667	31,872,000	7,892,490	7,892,468	7,892,468	2,334,855	188,175	6,805,086	48,235	0	1,266,667	633,360
		12,783,017	15,594,013	6,726,064	6,724,112	6,724,112	1,793,097	89,262	6,804,229	47,967	0	479,551	0

Fin Group	Asset Class	Rem Rent	Ttl Rent	Fair Value	Orig Oblig	Gross Asset	Accum Depr	Cur Oblig	LT Oblig	Accr Intr	Ppd Rent	Acr Gross Rent	Acr Oper Rent
		5,745	34,465	30,217	30,384	30,384	20,256	5,605	0	31	0	7,180	0
		0	44,748	40,436	40,662	40,662	24,396	0	0	0	0	12,430	0
		0	103,776	92,600	93,040	93,040	74,431	0	0	0	0	2,162	0
		10,962	75,168	66,292	66,640	66,640	45,537	10,735	0	56	0	15,660	0
		30,888	114,048	99,801	100,359	100,359	58,542	27,351	2,363	166	0	23,760	0
		0	12,720	12,732	11,761	12,732	12,731	0	0	0	0	2,544	0
		100	327,475	322,927	302,242	322,927	322,827	99	0	1	0	36,375	0
		17,660	63,576	54,160	54,160	54,160	39,116	16,773	0	159	0	17,660	0
		1,370,717	1,390,502	1,164,132	1,164,133	1,164,133	15,069	162,327	982,020	6,687	0	19,785	0
		8,510	47,905	40,142	40,142	40,142	31,632	8,466	0	44	0	5,909	0
		7,368	43,520	36,838	36,835	36,835	29,467	7,331	0	36	0	5,423	0
		11,548	68,210	57,738	57,732	57,732	46,185	11,491	0	57	0	8,499	0
		3,025	16,424	13,992	13,992	13,992	11,007	2,998	0	14	0	2,271	0
		10,185	60,164	50,927	50,922	50,922	40,737	10,135	0	50	0	7,497	0
		8,589	50,733	42,944	42,940	42,940	34,351	8,546	0	42	0	6,322	0
		3,310	17,966	15,306	15,306	15,306	12,041	3,280	0	16	0	2,484	0
		8,336	49,242	41,682	41,678	41,678	33,342	8,295	0	41	0	6,136	0
		2,773	15,055	12,826	12,826	12,826	10,090	2,748	0	13	0	2,082	0
		13,147	68,307	57,603	57,603	57,603	44,635	13,020	0	65	0	9,349	0
		541,218	2,217,833	1,833,393	1,833,393	1,833,393	1,292,175	538,033	0	3,185	0	248,387	0
		12,843	72,297	60,581	60,581	60,581	47,738	12,776	0	67	0	8,918	0
		9,947	55,995	46,921	46,921	46,921	36,974	9,896	0	52	0	6,907	0
		3,264	16,957	14,300	14,300	14,300	11,081	3,232	0	16	0	2,321	0

1,978,647	2,007,207	1,680,427	1,680,428	1,680,428	21,752	234,319	1,417,550	9,653	0	28,560	0
9,331	52,523	44,012	44,012	44,012	34,681	9,282	0	49	0	6,479	0
1,682,689	1,706,977	1,429,090	1,429,090	1,429,090	18,499	199,273	1,205,529	8,209	0	24,288	0
7,835	42,530	36,232	36,232	36,232	28,502	7,763	0	37	0	5,881	0
11,135	65,772	55,674	55,668	55,668	44,534	11,080	0	55	0	8,196	0
9,476	51,439	43,822	43,822	43,822	34,473	9,390	0	45	0	7,112	0
12,807	66,540	56,114	56,114	56,114	43,481	12,684	0	64	0	9,107	0
6,236	33,851	28,839	28,839	28,839	22,687	6,179	0	29	0	4,681	0
1,205,483	1,222,883	1,023,802	1,023,802	1,023,802	13,252	142,759	863,642	5,881	0	17,400	0
8,589	50,733	42,944	42,940	42,940	34,351	8,546	0	42	0	6,322	0
2,888	15,677	13,356	13,356	13,356	10,507	2,862	0	14	0	2,168	0
10,390	61,370	51,948	51,943	51,943	41,553	10,338	0	51	0	7,647	0
11,067	65,370	55,334	55,328	55,328	44,261	11,012	0	55	0	8,146	0
10,370	56,295	47,960	47,960	47,960	37,729	10,276	0	49	0	7,784	0
8,759	51,741	43,797	43,793	43,793	35,033	8,716	0	43	0	6,447	0
11,022	59,833	50,973	50,973	50,973	40,099	10,922	0	52	0	8,273	0
10,112	59,734	50,562	50,558	50,558	40,445	10,063	0	50	0	7,443	0
12,220	72,182	61,100	61,094	61,094	48,874	12,160	0	60	0	8,994	0
11,176	60,671	51,687	51,687	51,687	40,660	11,075	0	53	0	8,389	0
11,444	62,126	52,927	52,927	52,927	41,636	11,340	0	54	0	8,590	0
11,984	70,787	59,919	59,913	59,913	47,929	11,925	0	59	0	8,820	0
7,897	46,649	39,487	39,483	39,483	31,586	7,858	0	39	0	5,813	0
3,640	10,080	9,457	8,774	8,774	5,606	3,162	278	28	0	2,800	0
10,510	62,083	52,551	52,546	52,546	42,036	10,458	0	52	0	7,736	0
8,865	52,367	44,327	44,323	44,323	35,457	8,822	0	44	0	6,525	0
13,340	78,796	66,698	66,692	66,692	53,352	13,274	0	66	0	9,818	0
8,599	50,793	42,994	42,990	42,990	34,391	8,556	0	42	0	6,329	0
3,452	18,738	15,964	15,964	15,964	12,558	3,420	0	16	0	2,591	0
9,222	54,473	46,110	46,105	46,105	36,883	9,176	0	46	0	6,788	0
3,420	18,564	15,815	15,815	15,815	12,441	3,389	0	16	0	2,567	0
8,934	52,773	44,670	44,666	44,666	35,732	8,890	0	44	0	6,576	0
8,009	47,311	40,047	40,043	40,043	32,034	7,970	0	40	0	5,895	0
12,964	70,377	59,956	59,956	59,956	47,165	12,846	0	61	0	9,731	0
1,586,513	1,609,413	1,347,381	1,347,380	1,347,380	17,441	187,877	1,136,603	7,740	0	22,900	0
8,299	49,022	41,495	41,491	41,491	33,192	8,258	0	41	0	6,108	0
2,781	15,099	12,863	12,863	12,863	10,119	2,756	0	13	0	2,088	0
11,690	63,460	54,063	54,063	54,063	42,529	11,584	0	55	0	8,775	0

11,956	64,901	55,291	55,291	55,291	43,496	11,847	0	56	0	8,974	0
12,559	68,174	58,080	58,080	58,080	45,690	12,444	0	59	0	9,426	0
10,429	56,612	48,230	48,230	48,230	37,941	10,334	0	49	0	7,828	0
7,017	41,449	35,085	35,082	35,082	28,065	6,982	0	35	0	5,165	0
9,918	58,586	49,591	49,586	49,586	39,668	9,869	0	49	0	7,300	0
4,115	22,336	19,030	19,031	19,031	14,972	4,077	0	19	0	3,088	0
9,767	57,693	48,835	48,830	48,830	39,063	9,719	0	48	0	7,189	0
2,426	13,171	11,221	11,221	11,221	8,827	2,404	0	11	0	1,821	0
11,736	63,709	54,276	54,276	54,276	42,697	11,629	0	55	0	8,809	0
11,608	63,012	50,170	50,170	50,170	38,776	11,456	0	78	0	8,713	0
12,359	73,006	61,797	61,791	61,791	49,432	12,298	0	61	0	9,097	0
13,081	77,271	65,407	65,401	65,401	52,320	13,017	0	65	0	9,628	0
7,270	42,946	36,352	36,349	36,349	29,079	7,235	0	36	0	5,351	0
1,586	8,612	7,337	7,337	7,337	5,772	1,572	0	7	0	1,191	0
9,556	56,445	47,778	47,774	47,774	38,219	9,509	0	47	0	7,033	0
1,601	8,693	7,406	7,406	7,406	5,826	1,587	0	8	0	1,202	0
1,100,869	1,116,759	934,954	934,954	934,954	12,102	130,371	788,694	5,371	0	15,890	0
12,008	70,933	60,042	60,036	60,036	48,028	11,949	0	59	0	8,839	0
17,786	96,552	82,255	82,255	82,255	64,707	17,624	0	84	0	13,350	0
8,784	51,889	43,922	43,918	43,918	35,134	8,741	0	43	0	6,466	0
10,922	64,514	54,609	54,603	54,603	43,682	10,868	0	54	0	8,039	0
8,073	47,685	40,363	40,360	40,360	32,287	8,033	0	40	0	5,942	0
12,003	70,902	60,016	60,011	60,011	48,007	11,944	0	59	0	8,835	0
8,805	52,013	44,027	44,023	44,023	35,218	8,762	0	43	0	6,481	0
7,013	41,424	35,064	35,061	35,061	28,048	6,978	0	35	0	5,162	0
2,541	13,793	11,750	11,750	11,750	9,243	2,518	0	12	0	1,907	0
7,638	45,117	38,190	38,186	38,186	30,548	7,600	0	38	0	5,622	0
8,158	48,187	40,788	40,784	40,784	32,627	8,117	0	40	0	6,004	0
1,679	9,116	7,765	7,765	7,765	6,108	1,664	0	8	0	1,260	0
7,013	41,426	35,066	35,063	35,063	28,049	6,979	0	35	0	5,162	0
1,656	8,989	7,658	7,658	7,658	6,024	1,641	0	8	0	1,243	0
11,860	70,059	59,302	59,297	59,297	47,436	11,802	0	59	0	8,730	0
10,995	57,125	48,174	48,174	48,174	37,328	10,889	0	55	0	7,819	0
10,574	62,457	52,868	52,863	52,863	42,289	10,521	0	52	0	7,783	0
3,022	16,402	13,974	13,974	13,974	10,993	2,994	0	14	0	2,268	0
8,217	48,536	41,084	41,080	41,080	32,863	8,176	0	41	0	6,048	0
11,663	65,653	55,014	55,014	55,014	43,351	11,602	0	61	0	8,099	0

6,015	35,529	30,074	30,071	30,071	24,056	5,985	0	30	0	4,427	0
2,501	13,576	11,566	11,566	11,566	9,099	2,478	0	12	0	1,877	0
7,270	42,943	36,350	36,346	36,346	29,076	7,234	0	36	0	5,351	0
2,581	14,010	11,935	11,935	11,935	9,389	2,557	0	12	0	1,937	0
8,149	48,133	40,743	40,739	40,739	32,591	8,108	0	40	0	5,998	0
15,125	82,104	69,947	69,947	69,947	55,025	14,987	0	71	0	11,352	0
15,056	88,933	75,280	75,271	75,271	60,215	14,982	0	74	0	11,082	0
14,881	80,784	68,822	68,822	68,822	54,140	14,746	0	70	0	11,170	0
15,233	82,695	70,450	70,450	70,450	55,421	15,095	0	72	0	11,434	0
13,603	80,351	68,014	68,008	68,008	54,405	13,536	0	67	0	10,012	0
16,674	90,516	77,112	77,112	77,112	60,661	16,523	0	79	0	12,516	0
13,758	74,688	63,629	63,629	63,629	50,055	13,633	0	65	0	10,327	0
12,885	69,948	59,591	59,591	59,591	46,878	12,768	0	61	0	9,672	0
15,847	86,028	73,290	73,290	73,290	57,655	15,703	0	75	0	11,895	0
12,639	68,609	58,450	58,450	58,450	45,981	12,524	0	60	0	9,487	0
14,069	83,102	70,343	70,336	70,336	56,268	13,999	0	69	0	10,355	0
4,161	22,587	19,243	19,243	19,243	15,138	4,123	0	20	0	3,123	0
9,632	56,898	48,162	48,158	48,158	38,525	9,585	0	48	0	7,090	0
3,242	17,601	14,995	14,995	14,995	11,796	3,213	0	15	0	2,434	0
8,274	44,914	38,263	38,263	38,263	30,100	8,198	0	39	0	6,210	0
16,568	89,936	76,619	76,619	76,619	60,273	16,417	0	78	0	12,435	0
8,008	47,304	40,041	40,037	40,037	32,029	7,969	0	40	0	5,894	0
3,162	17,168	14,626	14,626	14,626	11,506	3,134	0	15	0	2,374	0
9,974	58,917	49,871	49,866	49,866	39,892	9,925	0	49	0	7,341	0
3,090	16,772	14,289	14,289	14,289	11,241	3,062	0	15	0	2,319	0
10,044	59,331	50,221	50,217	50,217	40,172	9,995	0	50	0	7,393	0
3,937	21,371	18,206	18,206	18,206	14,322	3,901	0	19	0	2,955	0
14,801	80,346	68,449	68,449	68,449	53,847	14,666	0	70	0	11,109	0
12,512	73,906	62,559	62,553	62,553	50,041	12,450	0	62	0	9,209	0
4,275	23,205	19,769	19,769	19,769	15,552	4,236	0	20	0	3,209	0
7,639	45,123	38,195	38,192	38,192	30,553	7,601	0	38	0	5,623	0
3,453	18,747	15,971	15,971	15,971	12,564	3,422	0	16	0	2,592	0
14,550	85,945	72,749	72,743	72,743	58,193	14,478	0	72	0	10,709	0
3,017	16,378	13,953	13,953	13,953	10,976	2,990	0	14	0	2,265	0
10,260	60,605	51,300	51,295	51,295	41,035	10,209	0	51	0	7,552	0
3,355	18,212	15,516	15,516	15,516	12,206	3,324	0	16	0	2,518	0
8,008	47,304	40,041	40,037	40,037	32,029	7,969	0	40	0	5,894	0

3,163	17,168	14,626	14,626	14,626	11,506	3,134	0	15	0	2,374	0
8,897	48,299	41,147	41,147	41,147	32,369	8,816	0	42	0	6,678	0
10,418	56,553	48,179	48,179	48,179	37,901	10,323	0	49	0	7,820	0
11,220	66,275	56,099	56,094	56,094	44,875	11,165	0	55	0	8,258	0

Cur Oblig	LT Oblig
210,085	6,126,474
171,363	4,997,238
202,609	5,908,469
22,238	3,915,278
	-569,215

Acr Exec Cost	Cash Gross Rent	Cash Oper Rent	Cash Exec Cost	Cap Rent	Intr Exp	Depr Exp	Term Adj	Lvl Rent	Defer Ast/Liab	Intr Paid	(Natural Sign format)
0	39,858	0	0	39,858	1,889	29,419	0	0	0	2,105
0	145,660	0	0	145,660	22,920	100,080	0	0	0	23,621

Acr Exec Cost	Cash Gross Rent	Cash Oper Rent	Cash Exec Cost	Cap Rent	Intr Exp	Depr Exp	Term Adj	Lvl Rent	Defer Ast/Liab	Intr Paid	(Natural Sign format)
0	521,640	0	0	521,640	374,950	184,265	0	0	0	376,223
0	1,280,675	841,190	0	439,485	373,558	141,159	0	0	0	374,130
0	1,012,285	387,040	0	625,245	587,205	134,688	0	0	0	587,720
0	1,367,806	822,500	0	545,306	368,226	185,238	0	0	0	369,762
0	1,002,039	410,480	0	591,559	316,504	171,301	0	0	0	318,890
0	678,166	0	0	678,166	478,295	456,882	0	0	0	479,512
0	546,882	221,870	0	325,012	191,679	99,416	0	0	0	192,867
0	528,448	0	0	528,448	176,654	136,537	0	0	0	180,784
0	561,458	131,980	0	429,478	249,163	56,233	0	0	0	252,123
0	337,410	0	0	337,410	276,045	208,332	0	0	0	276,404
0	1,035,825	222,750	0	813,075	795,912	149,806	0	0	0	796,168
0	374,655	0	0	374,655	216,415	143,913	0	0	0	217,787
0	701,606	236,440	0	465,166	238,148	124,320	0	0	0	240,548
0	586,900	182,820	0	404,080	213,033	115,044	0	0	0	214,612
0	502,620	234,130	0	268,490	206,690	131,590	0	0	0	207,150
0	407,500	0	0	407,500	36,015	84,828	0	0	0	40,601
0	77,630	0	0	77,630	12,061	20,707	0	0	0	13,539
0	325,093	0	0	325,093	47,419	91,752	0	0	0	50,237
0	392,192	0	0	392,192	163,314	125,300	0	0	0	165,378
0	286,667	91,733	0	194,933	12,462	57,441	0	0	0	14,320
0	443,013	139,260	0	303,753	107,223	99,927	0	0	0	108,848
0	20,990	0	0	20,990	6,377	16,074	0	0	0	6,477
0	699,749	349,780	0	349,969	222,816	107,145	0	0	0	223,867
0	517,500	195,460	0	322,040	229,370	36,221	0	0	0	230,022
0	1,050,000	332,000	0	718,000	591,797	308,786	0	0	0	592,653
0	1,041,559	475,290	0	566,269	547,702	147,108	0	0	0	547,905
0	1,149,330	652,170	0	497,160	547,004	240,174	0	0	0	546,653
0	1,175,000	643,050	0	531,950	483,555	160,624	0	0	0	483,975

0	-53,625	0	0	-53,625	-66,798	-42,279	0	0	0	-61,606
0	426,790	121,410	0	305,380	59,511	74,099	0	0	0	62,546
0	1,266,833	427,600	0	839,233	460,701	210,541	0	0	0	463,985
0	207,051	37,180	0	169,871	147,193	20,091	0	0	0	147,583
0	519,210	0	0	519,210	491,347	142,193	0	0	0	491,589
0	344,380	0	0	344,380	300,381	238,837	0	0	0	300,661
0	469,310	0	0	469,310	299,089	271,818	0	0	0	300,048
0	975,682	486,150	0	489,532	430,352	142,945	0	0	0	430,865
0	1,060,800	0	0	1,060,800	821,303	414,948	0	0	0	823,380
0	1,266,667	633,360	0	633,306	486,924	328,853	0	0	0	487,926
0	479,551	0	0	479,551	480,630	280,171	0	0	0	480,623

Acr Exec Cost	Cash Gross Rent	Cash Oper Rent	Cash Exec Cost	Cap Rent	Intr Exp	Depr Exp	Term Adj	Lvl Rent	Defer Ast/Liab	Intr Paid	(Natural Sign format)
0	7,180	0	0	7,180	475	5,064	0	0	0	512
0	12,430	0	0	12,430	306	6,777	-16,265	0	0	373
0	2,162	0	0	2,162	0	1,551	-18,609	0	0	10
0	15,660	0	0	15,660	914	11,107	0	0	0	991
0	23,760	0	0	23,760	2,203	16,726	0	0	0	2,323
0	2,544	0	0	2,544	35	2,546	-1	0	0	48
0	36,375	0	0	36,375	228	35,870	0	0	0	454
0	17,660	0	0	17,660	2,252	15,044	0	0	0	2,397
0	19,785	0	0	19,785	6,687	15,069	0	0	0	0
0	5,909	0	0	5,909	511	4,745	0	0	0	540
0	5,423	0	0	5,423	427	4,420	0	0	0	451
0	8,499	0	0	8,499	669	6,928	0	0	0	707
0	2,271	0	0	2,271	187	1,866	0	0	0	197
0	7,497	0	0	7,497	590	6,111	0	0	0	624
0	6,322	0	0	6,322	497	5,153	0	0	0	526
0	2,484	0	0	2,484	205	2,041	0	0	0	216
0	6,136	0	0	6,136	483	5,001	0	0	0	511
0	2,082	0	0	2,082	172	1,710	0	0	0	181
0	9,349	0	0	9,349	848	7,565	0	0	0	890
0	248,387	0	0	248,387	30,022	191,433	0	0	0	31,307
0	8,918	0	0	8,918	772	7,161	0	0	0	814
0	6,907	0	0	6,907	598	5,546	0	0	0	631
0	2,321	0	0	2,321	210	1,878	0	0	0	221

0	28,560	0	0	28,560	9,653	21,752	0	0	0	0
0	6,479	0	0	6,479	561	5,202	0	0	0	592
0	24,288	0	0	24,288	8,209	18,499	0	0	0	0
0	5,881	0	0	5,881	485	4,831	0	0	0	510
0	8,196	0	0	8,196	645	6,680	0	0	0	682
0	7,112	0	0	7,112	587	5,843	0	0	0	617
0	9,107	0	0	9,107	826	7,370	0	0	0	867
0	4,681	0	0	4,681	386	3,845	0	0	0	406
0	17,400	0	0	17,400	5,881	13,252	0	0	0	0
0	6,322	0	0	6,322	497	5,153	0	0	0	526
0	2,168	0	0	2,168	179	1,781	0	0	0	188
0	7,647	0	0	7,647	602	6,233	0	0	0	636
0	8,146	0	0	8,146	641	6,639	0	0	0	678
0	7,784	0	0	7,784	642	6,395	0	0	0	676
0	6,447	0	0	6,447	507	5,255	0	0	0	536
0	8,273	0	0	8,273	682	6,796	0	0	0	718
0	7,443	0	0	7,443	586	6,067	0	0	0	619
0	8,994	0	0	8,994	708	7,331	0	0	0	748
0	8,389	0	0	8,389	692	6,892	0	0	0	728
0	8,590	0	0	8,590	708	7,057	0	0	0	746
0	8,820	0	0	8,820	694	7,189	0	0	0	734
0	5,813	0	0	5,813	457	4,738	0	0	0	484
0	2,800	0	0	2,800	371	2,437	0	0	0	390
0	7,736	0	0	7,736	609	6,305	0	0	0	644
0	6,525	0	0	6,525	513	5,319	0	0	0	543
0	9,818	0	0	9,818	772	8,003	0	0	0	817
0	6,329	0	0	6,329	498	5,159	0	0	0	527
0	2,591	0	0	2,591	214	2,129	0	0	0	225
0	6,788	0	0	6,788	534	5,533	0	0	0	565
0	2,567	0	0	2,567	212	2,109	0	0	0	223
0	6,576	0	0	6,576	517	5,360	0	0	0	547
0	5,895	0	0	5,895	464	4,805	0	0	0	491
0	9,731	0	0	9,731	802	7,994	0	0	0	845
0	22,900	0	0	22,900	7,740	17,441	0	0	0	0
0	6,108	0	0	6,108	481	4,979	0	0	0	508
0	2,088	0	0	2,088	172	1,715	0	0	0	181
0	8,775	0	0	8,775	724	7,208	0	0	0	762

0	8,974	0	0	8,974	740	7,372	0	0	0	779
0	9,426	0	0	9,426	777	7,744	0	0	0	818
0	7,828	0	0	7,828	645	6,431	0	0	0	679
0	5,165	0	0	5,165	406	4,210	0	0	0	430
0	7,300	0	0	7,300	574	5,950	0	0	0	607
0	3,088	0	0	3,088	254	2,538	0	0	0	268
0	7,189	0	0	7,189	565	5,859	0	0	0	598
0	1,821	0	0	1,821	150	1,496	0	0	0	158
0	8,809	0	0	8,809	726	7,237	0	0	0	765
0	8,713	0	0	8,713	1,023	6,572	0	0	0	1,075
0	9,097	0	0	9,097	716	7,415	0	0	0	757
0	9,628	0	0	9,628	757	7,848	0	0	0	801
0	5,351	0	0	5,351	421	4,362	0	0	0	445
0	1,191	0	0	1,191	98	978	0	0	0	103
0	7,033	0	0	7,033	553	5,733	0	0	0	585
0	1,202	0	0	1,202	99	987	0	0	0	104
0	15,890	0	0	15,890	5,371	12,102	0	0	0	0
0	8,839	0	0	8,839	695	7,204	0	0	0	735
0	13,350	0	0	13,350	1,101	10,967	0	0	0	1,159
0	6,466	0	0	6,466	509	5,270	0	0	0	538
0	8,039	0	0	8,039	632	6,552	0	0	0	669
0	5,942	0	0	5,942	467	4,843	0	0	0	494
0	8,835	0	0	8,835	695	7,201	0	0	0	735
0	6,481	0	0	6,481	510	5,283	0	0	0	539
0	5,162	0	0	5,162	406	4,207	0	0	0	429
0	1,907	0	0	1,907	157	1,567	0	0	0	166
0	5,622	0	0	5,622	442	4,582	0	0	0	468
0	6,004	0	0	6,004	472	4,894	0	0	0	500
0	1,260	0	0	1,260	104	1,035	0	0	0	109
0	5,162	0	0	5,162	406	4,207	0	0	0	430
0	1,243	0	0	1,243	102	1,021	0	0	0	108
0	8,730	0	0	8,730	687	7,115	0	0	0	726
0	7,819	0	0	7,819	709	6,327	0	0	0	744
0	7,783	0	0	7,783	612	6,343	0	0	0	648
0	2,268	0	0	2,268	187	1,863	0	0	0	197
0	6,048	0	0	6,048	476	4,929	0	0	0	503
0	8,099	0	0	8,099	701	6,503	0	0	0	739

0	4,427	0	0	4,427	348	3,608	0	0	0	368
0	1,877	0	0	1,877	155	1,542	0	0	0	163
0	5,351	0	0	5,351	421	4,361	0	0	0	445
0	1,937	0	0	1,937	160	1,591	0	0	0	168
0	5,998	0	0	5,998	472	4,889	0	0	0	499
0	11,352	0	0	11,352	936	9,326	0	0	0	985
0	11,082	0	0	11,082	872	9,032	0	0	0	922
0	11,170	0	0	11,170	921	9,176	0	0	0	970
0	11,434	0	0	11,434	943	9,393	0	0	0	993
0	10,012	0	0	10,012	788	8,161	0	0	0	833
0	12,516	0	0	12,516	1,032	10,282	0	0	0	1,086
0	10,327	0	0	10,327	852	8,484	0	0	0	896
0	9,672	0	0	9,672	797	7,945	0	0	0	839
0	11,895	0	0	11,895	981	9,772	0	0	0	1,032
0	9,487	0	0	9,487	782	7,793	0	0	0	823
0	10,355	0	0	10,355	815	8,440	0	0	0	862
0	3,123	0	0	3,123	258	2,566	0	0	0	271
0	7,090	0	0	7,090	558	5,779	0	0	0	590
0	2,434	0	0	2,434	201	1,999	0	0	0	211
0	6,210	0	0	6,210	512	5,102	0	0	0	539
0	12,435	0	0	12,435	1,025	10,216	0	0	0	1,079
0	5,894	0	0	5,894	464	4,804	0	0	0	490
0	2,374	0	0	2,374	196	1,950	0	0	0	206
0	7,341	0	0	7,341	577	5,984	0	0	0	611
0	2,319	0	0	2,319	191	1,905	0	0	0	201
0	7,393	0	0	7,393	582	6,026	0	0	0	615
0	2,955	0	0	2,955	244	2,427	0	0	0	257
0	11,109	0	0	11,109	916	9,127	0	0	0	964
0	9,209	0	0	9,209	724	7,506	0	0	0	766
0	3,209	0	0	3,209	265	2,636	0	0	0	278
0	5,623	0	0	5,623	442	4,583	0	0	0	468
0	2,592	0	0	2,592	214	2,129	0	0	0	225
0	10,709	0	0	10,709	842	8,729	0	0	0	891
0	2,265	0	0	2,265	187	1,860	0	0	0	197
0	7,552	0	0	7,552	594	6,155	0	0	0	628
0	2,518	0	0	2,518	208	2,069	0	0	0	219
0	5,894	0	0	5,894	464	4,804	0	0	0	490

0	2,374	0	0	2,374	196	1,950	0	0	0	206
0	6,678	0	0	6,678	551	5,486	0	0	0	580
0	7,820	0	0	7,820	645	6,424	0	0	0	679
0	8,258	0	0	8,258	650	6,731	0	0	0	687

ANNEX D

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Kohl’s Food Stores, Inc.	Wisconsin SOS		UCC-1	Wisconsin Lift Truck Corp.	Specific Equipment	06/21/2003	030010376522
Pathmark Stores, Inc.	Delaware SOS		UCC-1	General Electric Company, GE Lighting	Specific Equipment	10/19/2001	11440978
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Cont	General Electric Company, GE Lighting	Specific Equipment	10/19/2001	11440978	04/27/2006	61406198
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In Lieu	Fleet Capital Corporation, Successor by Merger to BancBoston Leasing Inc.	Leased Equipment In Lieu of various 1997 and 1998 filings.	03/01/2002	20723332
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Emigrant Business Credit Corporation	Leased Equipment	05/06/2002	21118052

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In Lieu	Finova Capital Corporation	In-lieu Continuation NY, New York County 08/02/1999, 99PN41162; PA, Philadelphia County, 07/29/1999, 99 4195; PA SOS, 07/28/1999, 30541191; NY SOS, 08/02/1999, 154326, NY SOS, 07/28/1999, 151130; NJ SOS, 12/28/1999, 1947932; NJ, Middlesex County, 01/13/2000, 2016; NY SOS, 12/28/1999, 260241; NY, Queens County, 01/05/2000, 00PQ00159.	05/29/2002	21326382

2

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In-lieu	New Jersey Economic Development Authority	Specific Equipment All machinery and equipment of every nature. NJ SOS, 08/21/1998, 1856446	05/31/2002	21618937
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Cont	New Jersey Economic Development Authority	Specific Equipment All machinery and equipment of every nature. NJ SOS, 08/21/1998, 1856446	05/31/2002	21618937	01/17/2007	20070206804
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In-lieu	BCC Equipment Leasing Corporation	Leased Equipment NY SOS, 10/28/1997, 222869; NY SOS, 10/29/1997, 223626	06/18/2002	21743479

3

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In-lieu	BCC Equipment Leasing Corporation	Leased Equipment NJ SOS, 10/30/1997, 1798778; NY SOS, 10/28/1997, 222867	06/18/2002	21743503
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Deleted Collateral	BCC Equipment Leasing Corporation	Leased Equipment NJ SOS, 10/30/1997, 1798778; NY SOS, 10/28/1997, 222867	06/18/2002	21743503	11/14/2002	22873606
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Transamerica Equipment Financial Services Corporation	Leased Equipment	06/28/2002	21841216
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Transamerica Equipment Financial Services Corporation	Leased Equipment	08/01/2002	22029290
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Transamerica Equipment Financial Services Corporation	Leased Equipment	08/23/2002	22183436

4

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	11/14/2002	22872780
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Added Collateral	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	11/14/2002	22872780	12/17/2002	23142779
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Cont	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	11/14/2002	22872780	09/05/2007	20073365300
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In-lieu	MDFC Equipment Leasing Corporation	In lieu Leased Equipment NJ SOS, 12/23/1994, 1610583 - Original; NJ SOS, 07/07/1999, 1933426 - Continuation	11/14/2002	22873135

5

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Deleted Collateral	MDFC Equipment Leasing Corporation	In lieu Leased Equipment NJ SOS, 12/23/1994, 1610583 - Original; NJ SOS, 07/07/1999, 1933426 - Continuation	11/14/2002	22873135	11/15/2002	22885873
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In-lieu	Bell Atlantic TriCon Leasing Corporation	In lieu Leased Equipment PA SOS, 03/28/1994, 22961568 - Original PA SOS, 12/31/1998, 29751027 - Continuation	11/14/2002	22873192

6

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Deleted Collateral	Bell Atlantic TriCon Leasing Corporation	In lieu Leased Equipment PA SOS, 03/28/1994, 22961568 - Original PA SOS, 12/31/1998, 29751027 - Continuation	11/14/2002	22873192	11/15/2002	22885865
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Deleted Collateral	Bell Atlantic TriCon Leasing Corporation	In lieu Leased Equipment PA SOS, 03/28/1994, 22961568 - Original PA SOS, 12/31/1998, 29751027 - Continuation	11/14/2002	22873192	12/20/2002	23197518
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	12/20/2002	23198524

7

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Amend Amended Debtor’s address	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	12/20/2002	23198524	01/03/2003	30023294
Pathmark Stores, Inc.	Delaware SOS		UCC-3 Continuation	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	12/20/2002	23198524	09/05/2007	20073375184
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	03/28/2003	30813116
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Healthguard International, Inc.	Leased Equipment	04/15/2003	30973712
Pathmark Stores	Delaware SOS		UCC-1	Healthguard International, Inc.	Leased Equipment	01/19/2004	40144008
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In Lieu	General Electric Co.	Specific  Equipment In Lieu of PA SOS filing.	03/19/2004	40775181
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In Lieu	General Electric Co.	Specific  Equipment In Lieu of PA SOS filing.	03/19/2004	40778193

8

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
Pathmark Stores, Inc.	Delaware SOS		UCC-1 In Lieu	General Electric Company GE Lighting	Specific Equipment In Lieu of NY SOS filing.	03/19/2004	40779928
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Matsuhita Electric Corporation of America (MECA) & Affliated & Related MECA Companies	Specific Equipment	10/18/2004	42924365
Pathmark Stores	Delaware SOS		UCC-1	Konica Minolta Business Solutions U.S.A., Inc.	Leased Equipment	10/04/2005	53063840
Pathmark Stores, Inc.	Delaware SOS		UCC-1	Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc.	Leased Equipment	10/30/2007	2007 4124334
Super Market Service Corp.	Pennsylvania SOS		UCC-1	Keystone Equipment Finance Corp.	Specific Equipment	05/30/2007	2007053005453
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102502
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102502	01/14/2002	181102502
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102502	10/04/2006	181102502
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102503

9

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102503	01/15/2002	181102503
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102503	10/04/2006	181102503
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102507
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102507	01/14/2002	181102507
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102507	04/19/2002	181102507
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Term	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102507	12/21/2005	181102507
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102507	10/04/2006	181102507
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102521
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102521	01/14/2002	181102521

10

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102521	02/20/2002	181102521
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102521	10/04/2006	181102521
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102540
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102540	01/14/2002	181102540
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102540	10/04/2006	181102540
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102541
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102541	01/14/2002	181102541
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	11/26/2001	181102541	10/04/2006	181102541
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106909
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106909	10/04/2006	181106909

11

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106912
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106912	10/04/2006	181106912
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106926
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Added Collateral	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106926	04/19/2002	181106926
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	01/14/2002	181106926	10/04/2006	181106926
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	02/20/2002	181110272
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	02/20/2002	181110272	11/15/2006	181110272
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	LaSalle National Leasing Corporation	Leased Equipment	02/20/2002	181110338
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Cont	LaSalle National Leasing Corporation	Leased Equipment	02/20/2002	181110338	11/15/2006	181110338
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	02/12/2003	181143983
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	02/12/2003	181143984
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Gatx Technology Services Corporation	Leased Equipment	02/26/2003	181144808

12

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-3 Amend Restated Collateral	Gatx Technology Services Corporation	Leased Equipment	02/26/2003	181144808	04/17/2003	181144808
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	02/26/2003	181144845
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	02/26/2003	181144895
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	04/11/2003	181149677
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	04/11/2003	181149751
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	HealthGuard International, Inc.	Leased Equipment	04/18/2003	181150344
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	American Bank Note Company, as agent for the United States Postal Service	Consigned Goods	05/27/2003	181154286
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	NEC Financial Services, Inc.	Leased Equipment	11/06/2003	181170973
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	11/21/2003	181172654
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	11/21/2003	181172735
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	05/28/2004	181192946
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	07/21/2004	181198885

13

Debtor	Jurisdiction	Scope of Search	Type of filing found	Secured Party	Collateral	Original File Date	Original File Number	Amdt. File Date	Amdt. File Number
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	07/21/2004	181199047
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	NCR Corporation	Specific Equipment	09/13/2004	181204515
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	American Bank Note Company, as agent for the United States Postal Service	Consigned Goods	05/26/2006	181269962
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	American Bank Note Company, as agent for the United States Postal Service	Consigned Goods	08/25/2006	1812789472
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	General Electric Capital Corp.	Leased Equipment	01/26/2007	181295094
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	General Electric Capital Corp.	Leased Equipment	02/07/2007	181296245
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Crown Credit Company	Specific Equipment	05/18/2007	181307010
The Great Atlantic & Pacific Tea Company, Inc.	Maryland SOS		UCC-1	Xerox Corporation	Leased Equipment	11/09/2007	181325029
Waldbaum, Inc.	New York SOS		UCC-1	American Bank Note Company, as agent for the United States Postal Service	Consigned Goods	08/25/2006	200608250698225

14

EXHIBIT A: FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each](1) Assignor identified in item 1 below Whelleach, an] “Assignor”) and [the][each](2) Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees](3) hereunder are sev eral and not joint.](4) Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities iden tified below (including, without limitation, with respect to the Tranche A Commitments, the Letters of Credit and the Swingline Loans included in such facilities(5)) and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the] [any] Assignor.

(1) For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.

(2) For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.

(3) Select as appropriate.

(4) Include bracketed language if there are either multiple Assignors or multiple Assignees.

(5) Include all applicable subfacilities, if any.

1.Assignors:

2.Assignees:

[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]

3.Borrowers:  The Great Atlantic & Pacific Tea Company, Inc. and the other Borrowers party to the Credit Agreement.

4.Administrative Agent: Bank of America, N.A., as the Administrative Agent under the Credit Agreement

5.Credit Agreement: Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) entered into by, among others, The Great Atlantic & Pacific Tea Company, Inc., the other Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Collateral Agent.

6.Assigned Interests:

Assignorlsl(6)	Assignee( s1(7)	Facility Assigned(8)	Aggregate Amount of Commitment/Loans for all Lenders(9)	Amount of Commitment/ Loans Assignee(10)	Percentage Assigned of Commitment/ Loans(11)		CUS1P Number
			$	$		%
			$	$		%
				$		%

[7.           Trade Date:                                                       ](12)

(6) List each Assignor, as appropriate.

(7) List each Assignee, as appropriate.

(8) Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Tranche A Commitment”, “Tranche A-1 Commitment”, “Term Loan”, “Term A-2 Loan”, etc.).

(9) Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.

(10)°Subject to minimum amount requirements pursuant to Section 9.04(b)(i) of the Credit Agreement and subject to proportionate amount requirements pursuant to Section 9.04(b)(ii) of the Credit Agreement.

(11) Set forth , to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

(12) To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

Effective Date:                    20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

		ASSIGNOR
		[NAME OF ASSIGNOR]
		By:
			Title:
		ASSIGNEE
		[NAME OF ASSIGNEE]
		By:
			Title:
Acknowledged, consented to:(13)
BANK OF AMERICA, N.A., as Administrative Agent
By:
	Title:

(13) To the extent required under Section 9.04(b)(iii)(B) of the Credit Agreement.

Acknowledged and consented to: (14)

BANK OF AMERICA, N.A., as Swingline Lender

By:

Title:

(14) To the extent required under Section 9.04(b)(iii)(B) of the Credit Agreement.

Acknowledged and consented to:(15)

[ISSUING BANK[S], as applicable]

By:

Title:

(15) To the extent required under Section 9.04(b)(iii)(A) of the Credit Agreement.

Acknowledged and consented to:(16)

THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., as the Company

By:

Title:

(16) To the extent required under Section 9.04(b)(iii)(A) of the Credit Agreement.

ANNEX 1 TO ASSIGNMENT AND ASSUMPTION

Reference is made to a certain Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from tome to time, the “Credit Agreement”), entered into by, among others, The Great Atlantic & Pacific Tea Company, Inc., the other Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Collateral Agent.

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1.             Representations and Warranties.

1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Loan Parties or any other Person obliga ted in respect of any Loan Document or (iv) the performance or observance by the Loan Parties or any other Person of any of their respective obligations under any Loan Document.

1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an Eligible Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 9.04(b)(iiil of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] A ssigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent, the Collateral Agent, or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, [the][ any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with

their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.          Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.

3.         General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, 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 51402).

4. Fees. Unless waived by the Administrative Agent in accordance with section 9.04(b)(iv), this Assignment and Assumption shall be delivered to the Administrative Agent with a processing and recordation fee of $3,500.00.

EXHIBIT C - Form of Guaranty

GUARANTY, dated as of December 3, 2007, made by THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each of the subsidiaries of the Company listed on Schedule I hereto (each such subsidiary individually, a “Subsidiary” and, collectively, the “Subsidiaries”; and each such Subsidiary and the Company, individually, a “Guarantor” and, collectively, the “Guarantors”) in favor of BANK OF AMERICA, N.A. (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of the other Secured Parties (as defined in the Security Agreement defined below).

Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral Agent. Capitalized terms used herein but not defined herein shall have the meanings as set forth in the Amended and Restated Credit Agreement.

The Lenders have agreed to make Loans to the Borrowers, in each case, pursuant to, and upon the terms and subject to the conditions specified in, the Amended and Restated Credit Agreement. Each of the Guarantors (except for the Company) is a direct or indirect subsidiary of the Company and acknowledges that it will derive substantial benefit from the making of the Loans by the Lenders. The obligations of the Lenders to make Loans, and the Issuing Bank to issue Letters of Credit are each conditioned on, among other things, the execution and delivery by the Guarantors of a Guaranty in the form hereof (this “Guaranty”). As consideration therefor and in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the Guarantors are willing to execute this Agreement.

Accordingly, the parties hereto agree as follows:

SECTION 1. Guarantee. Each Guarantor unconditionally and absolutely guarantees to each Secured Party, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers under the Amended and Restated Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, (iii) obligations to repay overdraft amounts plus interest, if any, customarily applied on overdrafts and all obligations (including without limitation fees, costs, expenses and indemnities) owed to any Lender or an Affiliate of a Lender arising from any Cash Management Services provided by a Lender or Affiliate of a Lender to any Loan Party and (iv) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any

bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers to the Secured Parties under the Amended and Restated Credit Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Amended and Restated Credit Agreement and the other Loan Documents, (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Loan Party under or pursuant to this Agreement or the other Loan Documents, and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender or an Affiliate of a Lender at the time such Hedging Agreement was ent ered into (all the monetary and other obligations described in the preceding clauses (a) through (d) being collectively called the “Obligations”). Each Guarantor further agrees that the Obligations may be extended, renewed, exchanged, continued, converted, amended, amended and restated, supplemented, consolidated or otherwise modified in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension, renewal, exchange, continuation, conversion, amendment, amendment and restatement, supplement, consolidation or other modification of any Obligation.

SECTION 2. Obligations Not Waived. To the fullest extent permitted by applicable law, each Guarantor waives presentment to, demand of payment from and protest to each Borrower or any other person of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment and any requirement that the Collateral Agent or any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto. To the fullest extent permitted by applicable law, the obligations of each Guarantor hereunder shall not be affected by (a) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce or exercise any right or remedy against any Borrower, any other Guarantor or any other guarantor under the provisions of the Amended and Restated Credit Agreement, any other Loan Do cument or otherwise for any reason, (b) any rescission, waiver (except the effect of any waiver obtained pursuant to Section 12(b)), amendment or modification of, or any release of any Borrower or any other Guarantor from any terms or provisions of any other Loan Document, any other Guaranty or any other agreement, including with respect to any other Guarantor under this Agreement, (c) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any other Secured Party, (d) any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral or (e) any other circumstance that might in any manner or to any extent otherwise constitute a defense available to, vary the risk of, or operate as a discharge of, such Guarantor as a matter of law or equity.

SECTION 3. Security. Each Guarantor authorizes the Collateral Agent and each of the other Secured Parties to (a) take and hold security for the payment of this Guaranty and the Obligations and exchange, enforce, waive and release any such security, (b) apply such security and direct the order or manner of sale thereof as they in their sole discretion may determine and (c) release or substitute any one or more endorsers, other guarantors or other obligors.

SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its guarantee constitutes a guarantee of payment when due jointly and severally with each other Guarantor and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any of the security held for payment of the Obligations or to any

11

balance of any deposit account or credit on the books of the Collateral Agent or any other Secured Party in favor of any Borrower or any other Person.

SECTION 5. No Discharge or Diminishment of Guarantee. The obligations of each Guarantor hereunder are irrevocable and shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any regulatory change or other governmental action (whether or not adverse) or other change in applicable law, or any claim of waiver, release, surrender, alteration or compromise of any of the Obligations against any Borrower or any other Guarantor, and shall not be subject to any defense, setoff, counterclaim, recoupment, abatement or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impai red or otherwise affected by: (a) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under the Amended and Restated Credit Agreement, any other Loan Document or any other agreement, (b) any waiver or modification of any provision of any thereof, (c) any default, failure or delay, willful or otherwise, in the performance of the Obligations, (d) any change in the existence, structure or ownership of any Borrower or any other Guarantor, (e) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Borrower or any other Guarantor or its assets or any resulting disallowance, release or discharge of all or any portion of the Obligations, (f) any direction as to application of payment by any Borrower or any other Guarantor or any other Person, (g) the failure by any Borrower or any Guarantor or any other Person to sign this Agreement or a guaranty similar to this Agreement or (h) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of each Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).

SECTION 6. Defenses of Borrowers Waived. To the fullest extent permitted by applicable law, each of the Guarantors waives any defense based on or arising out of any defense of any Borrower or the invalidity or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower, other than the final and indefeasible payment in full in cash of the Obligations (or, in the case of an action seeking payment of less than all the Obligations, payment in full in cash of the portion of the Obligations sought in such action). The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accep t an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any Borrower or any other Guarantor or exercise any other right or remedy available to them against any Borrower or any other Guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully, finally and indefeasibly paid in cash. To the fullest extent permitted by applicable law, each of the Guarantors waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against any Borrower or any other Guarantor or guarantor, as the case may be, or any security.

12

SECTION 7.            Agreement to Pay; Subordination.

(a)           Payments to be Made Upon Default. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party as designated thereby, in cash the amount of such unpaid Obligations.

(b)           General Provisions as to Payments. Each payment hereunder shall be made without set-off, counterclaim or other deduction, in Federal or other funds immediately available in Boston, Massachusetts, to the Collateral Agent at the address(es) referred to in Section 14 on the basis set forth in Section 2.17 of the Amended and Restated Credit Agreement.

(c)           Application of Payments. All payments received by the Administrative Agent hereunder shall be applied as provided in Section 7.03 of the Amended and Restated Credit Agreement.

(d)           Subordination. Upon payment by any Guarantor of any sums to the Collateral Agent or any Secured Party as provided above, all rights of such Guarantor against any Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any other Borrower or any other Guarantor now or hereafter held by any Borrower or any Guarantor is hereby subordinated in right of payment to the prior payment in full in cash of the Obligations. If any amount shall erroneously be paid to any Guarantor on account of (i) such subrogation, contribution, r eimbursement, indemnity or similar right or (ii) any such indebtedness of any Borrower or Guarantor, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

SECTION 8. Information. Each of the Guarantors assumes all responsibility for being and keeping itself informed of the Borrowers’ financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that none of the Collateral Agent or the other Secured Parties will have any duty to advise any of the Guarantors of information known to it or any of them regarding such circumstances or risks.

SECTION 9. Representations and Warranties. Each of the Guarantors represents and warrants as to itself that all representations and warranties relating to it contained in the Amended and Restated Credit Agreement are true and correct.

SECTION 10. Termination. The Guarantees made hereunder shall in all respects be continuing guarantees and (a) shall terminate when all the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations hereunder, survive the termination of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations hereunder), the Lenders have no further

13

commitment to lend, the UC Exposure has been reduced to zero or collateralized to the satisfaction of the Administrative Agent, the Issuing Bank has no further commitment to issue Letters of Credit under the Amended and Restated Credit Agreement and the Obligations under the Hedging Agreements described in clause (d) of the definition of Obligations hereunder have been reduced to zero (or collateral or indemnification to the satisfaction of the counterparties thereto has been provided) and (b) shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by any Secured Party or any Guarantor upon the bankruptcy or reorganization of any Borrower, any Guarantor or otherwise. A Subsidiary Guarantor shall automatically be released from its obligations hereunder in the event that all the capital stock of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of any Borrower (i) in accordance with the terms of Section 6.05 of the Amended and Restated Credit Agreement or (ii) if the Required Lenders shall have consented to such sale, transfer or other disposition (to the extent required by the Amended and Restated Credit Agreement) and the terms of such consent did not provide otherwise. Upon the release of a Guarantor from such obligations under this Agreement pursuant to this Section 10, and at the sole expense of such Guarantor, the Collateral Agent shall execute and deliver to such Guarantor such documents as such Guarantor may reasonably request to evidence such termination or release; provided that such Guarantor will provide such instruments, letter agreements and indemnities relating to its obligations hereunder prior to the date it ceased to be a subsidiary and such opinion of counsel a s may be requested and prove satisfactory to the Collateral Agent. Each Guarantor party hereto agrees that payment or performance of any of the Obligations or other acts which toll any statute of limitations applicable to the Obligations shall also toll the statute of limitations applicable to each such Guarantor’s liability hereunder.

SECTION 11. Binding Effect; Several Agreement; Assignments. 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 the Guarantors that are contained in this Agreement shall bind and inure to the benefit of each party hereto and their respective successors and assigns. This Agreement shall become effective as to any Guarantor when a counterpart hereof executed on behalf of such Guarantor 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 Guarantor and the Collateral Agent and their respective successors and assigns, and shall inure to the benefit of such Guarantor, the Collateral A gent and the other Secured Parties, and their respective successors and assigns, except that no Guarantor shall have the right to assign its rights or obligations hereunder or any interest herein (and any such attempted assignment shall be void). This Agreement shall be construed as a separate agreement with respect to each Guarantor and may be amended, modified, supplemented, waived or released with respect to any Guarantor without the approval of any other Guarantor and without affecting the obligations of any other Guarantor hereunder.

SECTION 12. Waivers; Amendment

(a) No failure or delay of the Collateral Agent or any Secured Party 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

14

power. The rights and remedies of the Collateral Agent hereunder and of the other Secured Parties under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Guarantor 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 or demand on any Guarantor in any case shall entitle such Guarantor 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 a written agreement entered into between the Guarantors with respect to which such waiver, amendment or modification relates and the Collateral Agent, subject to any consent required in accordance with Section 9.02 of the Amended and Restated Credit Agreement.

SECTION 13. 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 14. Notices. All communications and notices hereunder shall be in writing and given as provided in Section 9.01 of the Amended and Restated Credit Agreement. All communications and notices hereunder to each Guarantor shall be given to it at its address or telecopy number set forth in Schedule I hereto, with a copy to the Company.

SECTION 15. Survival of Agreement; Severability

(a)             All covenants, agreements, representations and warranties made by the Guarantors herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Collateral Agent and the other Secured Parties and shall survive the making by the Lenders of the Loans by the Lenders and the issuance of Letters of Credit by the Issuing Bank, in each case regardless of any investigation made by or on behalf of any Secured Party, and shall continue in full force and effect until this Agreement shall terminate.

(b)             In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein 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 16. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract, and shall become effective as

15

provided in Section 11. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

SECTION 17. Rules of Interpretation. The rules of interpretation specified in Section 1.03 of the Amended and Restated Credit Agreement shall be applicable to this Agreement.

SECTION 18. Jurisdiction; Consent to Service of Process

(a)             Each Guarantor 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 Loan 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 fmal 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 Loan Document shall affect any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any of the Guarantors or their respective properties in the courts of any jurisdiction.

(b)             Each Guarantor 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 Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby 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 14. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law. Each Guarantor hereby appoints the Company as its agent for service of process in the United States and the Company hereby accepts such appointment,

SECTION 19. 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 LOAN 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

16

PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 20. Additional Guarantors. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement each Subsidiary that is formed or acquired after the Effective Date and that is a Loan Party is required to execute the Guaranty. Upon execution and delivery after the date hereof by the Collateral Agent and such a Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein. The execution and delivery of any instrument adding an additional Guarantor as a party to this Agreement shall not require the consent of any other Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Agreement.

SECTION 21. Stay of Acceleration. If acceleration of the time for payment of any amount payable by any Borrower or any Guarantor under or with respect to the Obligations is stayed upon the insolvency or bankruptcy of any Borrower or such Guarantor, all such amounts otherwise subject to acceleration under the terms of the Amended and Restated Credit Agreement or any other agreement or instrument evidencing or securing the Obligations shall nonetheless be payable by the Guarantors hereunder, jointly and severally, forthwith on demand by the Collateral Agent.

SECTION 22. Right of Setoff

(a)             If an Event of Default shall have occurred and be continuing, each Secured Party is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Secured Party to or for the credit or the account of any Guarantor against any or all the obligations of such Guarantor then existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Secured Party shall have made any demand under this Agreement or any other Loan Document or whether such obligations may be unmatured. The rights of each Secured Party under this Section 21 are in addition to other right s and remedies (including any other rights of setoff) that such Secured Party may have. No Secured Party will, or will permit its Participant to, exercise its rights under this Section 21 without the consent of the Administrative Agent.

(b)             No act or omission of any kind or at any time on the part of any Secured Party in respect of any matter whatsoever shall in any way affect or impair the rights of the Collateral Agent or any other Secured Party to enforce any right, power or benefit under this Agreement, and no set-off, claim, reduction or diminution of any Obligation or any defense of any kind or nature which any Guarantor has or may have against any Borrower, any Guarantor or any Secured Party shall be available against the Collateral Agent or any other Secured Party in any suit or action brought by the Collateral Agent or any other Secured Party to enforce any right, power or benefit provided for by this Agreement; provided that nothing herein shall prevent the assertion by any Guarantor of any such claim by separate suit or comp ulsory counterclaim. Nothing in this Agreement shall be construed as a waiver by any Guarantor of any rights or

17

claims which it may have against any Secured Party hereunder or otherwise, but any recovery upon such rights and claims shall be had from such Secured Party separately, it being the intent of this Agreement that each Guarantor shall be unconditionally, absolutely and jointly and severally obligated to perform fully all its obligations, covenants and agreements hereunder for the benefit of each Secured Party.

SECTION 23. Maximum Liability

Notwithstanding any provision herein contained to the contrary, each Guarantor’s liability under this Agreement shall be limited to an amount not to exceed as of any date of determination the amount which could be claimed by any Secured Party from such Guarantor under this Agreement without rendering such claim voidable or avoidable under Section 548 of the Bankruptcy Code (Title 11, U.S.C.) or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law (the “Avoidance Provisions”) after taking into account, among other things, such Guarantor’s right of contribution and indemnification from each other Guarantor, if any (specifically excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness to any Borrower or any other Guarantor or a ny of its Affiliates to the extent that such indebtedness (A) would be discharged or would be subject to a right of set-off in an amount equal to the amount paid by such Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on behalf of the Secured Parties and (ii) under any guaranty of Indebtedness subordinated in right of payment to the Obligations which guaranty contains a limitation as to a maximum amount similar to that set forth in this paragraph pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount). To the end set forth above, but only to the extent that the obligations of a Guarantor hereunder (the “Guaranty Obligations”) would otherwise be subject to avoidance under the avoidance provisions, if such Guarantor is not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for the Guaranty Obligations, or if the Guaranty Obligations would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital to conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranty Obligations is deemed to have been incurred for the purposes of the Avoidance Provisions, the maximum Guaranty Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Guaranty Obligations as so reduced, to be subject to avoidance under the Avoidance Provisions.

[SIGNATURE PAGES FOLLOW]

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:
	Name:
	Title:

Signature Page 19 to Guaranty

EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE I HERETO
By:
	Name:
	Title:

Signature Page 20 to Guaranty

SCHEDULE I
Guarantors

GUARANTORS

ANP Properties I Corp.

Big Star Inc. (f/k/a Supersaver Inc.)

Family Center, Inc.

Futurestore Food Markets, Inc.

Kwik Save, Inc.

Limited Foods, Inc.

Montvale Holdings, Inc.

Richmond Twice, Incorporated

Super Fresh Food Markets of Maryland, Inc.

Super Fresh Food Markets of Virginia, Inc.

Supermarket Distribution Services, Inc.

2008 Broadway, Inc.

1046 Yonkers Ave. Corp.

111 North Avenue Realty Corp.

Clay-Park Realty Co., Inc.

Delaware County Dairies, Inc.

Gramatan Foodtown Corp.

Shopwell, Inc. [MA]

Shopwell, Inc. [NJ]

The Food Emporium, Inc. [NY]

The Food Emporium, Inc. [DE]

The Food Emporium, Inc. [NJ]

The Wine Emporium, Inc. [CT]

APW Supermarket Corporation

The Meadows Plaza Development Corp.

Spring Lane Produce Corp.

Borman’s, Inc.

Bev, Ltd.

Farmer Jack Pharmacies, Inc.

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.

Address for Notices:

2 Paragon Drive

Montvale, New Jersey 07645
Attention: Treasurer

Fax: (201) 571-8036

Annex 1 to the Guaranty

SUPPLEMENT NO. [ dated as of [ ], to the Guaranty (the “Guaranty”), dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each of the subsidiaries of the Company listed on Schedule I hereto (each such subsidiary individually, a “Subsidiary” and, collectively, the “Subsidiaries”; and each such Subsidiary and the Company, individually, a “Guarantor” and, collectively, the “Guarantors”) and BANK OF AMERICA, N.A. (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined in the Security Agreement).

A.            Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral Agent.

B.            Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Guaranty.

C. The Guarantors have entered into the Guaranty in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement each Subsidiary that is formed or acquired after the Effective Date and that is a Loan Party is required to become a party to the Guaranty. Section 20 of the Guaranty provides that additional Subsidiaries may become Guarantors under the Guaranty by execution and delivery of an instrument in the form of this Supplement (this “Supplement”). The undersigned Subsidiary (the “New Guarantor”) is executing this Supplement in accordance with the requirements of the Amended and Restated Credit Agreement to become a Guarantor under the Guaranty in order to induce the Lenders to make additional Loans, the Issuing Bank to issue additi onal Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.

Accordingly, the Collateral Agent and the New Guarantor agree as follows:

SECTION I. In accordance with Section 20 of the Guaranty, the New Guarantor by its signature below becomes a Guarantor under the Guaranty with the same force and effect as if originally named therein as a Guarantor and the New Guarantor hereby (a) agrees to all the terms and provisions of the Guaranty applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof, except to the extent a representation and warranty expressly relates solely to a specific date, in which case such representation and warranty shall be true and correct on such date. Each reference to a “Guarantor” in the Guaranty shall be deemed to include the New Guarantor. The Guaranty is hereby incorporated herein by reference.

SECTION 2. The New Guarantor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Guarantor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Supplement.

SECTION 4. Except as expressly supplemented hereby, the Guaranty shall remain in full force and effect.

SECTION 5. THIS SUPPLEMENT 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 6. In case any one or more of the provisions contained in this Supplement

should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guaranty shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision hereof in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). 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.

SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 14 of the Guaranty. All communications and notices hereunder to the New Guarantor shall be given to it at the address set forth under its signature below, with a copy to the Company.

SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for its out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Collateral Agent.

IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly executed this Supplement to the Guaranty as of the day and year first above written.

[NAME OF NEW GUARANTOR]

By:
	Name:
	Title:
	Address:
	BANK OF AMERICA, N.A., as Collateral Agent
By:
	Name:
	Title:

Schedule I

Guarantors

Exhibit D - Form of Indemnity, Subrogation and Contribution Agreement

INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT, dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each of the other subsidiaries of the Company listed as a “Borrower” on Schedule I hereto (each such subsidiary individually, a “Borrower” and, collectively, the “Borrowers”), each of the other subsidiaries the Company listed as a “Guarantor” on Schedule II hereto (each such subsidiary individually, a “Guarantor” and, collectively, the “Guarantors”) and BANK OF AMERICA, N.A., (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as such term is defined in the Security Agreement).< /p>

Reference is made to (a) the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), Bank of America, as administrative agent (in such capacity, the “Administrative Agent”), and the Collateral Agent and (b) the Guaranty made by each Guarantor in favor of the Secured Parties dated as of December 3, 2007. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Amended and Restated Credit Agreement.

The Lenders have agreed to make Loans to the Borrowers and the Issuing Bank has agreed to issue Letters of Credit for the account of the Borrowers pursuant to, and upon the terms and subject to the conditions specified in, the Amended and Restated Credit Agreement. The Guarantors have guaranteed the Obligations (as such term is defined in the Guaranty). The Guarantors have granted Liens on and security interests in certain of their assets to secure such guarantees pursuant to (a) the Pledge Agreement and (b) the Security Agreement, and certain other Guarantors have granted Liens on and security interests in certain of their assets to secure such guarantees pursuant to certain other Security Documents. The obligations of the Lenders to make Loans and the Issuing Bank to issue Letters of Credit are conditioned on, among other things, the execution and delivery by the Guarantors of an agreement in the form hereof. As consideration therefor and in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit , the Guarantors are willing to execute this Agreement.

Accordingly, each Borrower, each Guarantor and the Collateral Agent agree as follows:

1. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 3), each Borrower agrees that (a) in the event a payment shall be made by any Guarantor under the Guaranty, each Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold or otherwise disposed of pursuant to any Security Document to satisfy a claim of

26

any Secured Party, each Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.

2.             Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 3) that, in the event a payment shall be made by any other Guarantor under the Guaranty or assets of any other Guarantor shall be sold pursuant to any Security Document to satisfy a claim of any Secured Party and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrowers as provided in Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment or the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of wh ich the numerator shall be the net worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 12, the date of the Supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2 shall be subrogated to the rights of such Claiming Guarantor under Section 1 to the extent of such payment.

3.             Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of each of the Guarantors under Sections 1 and 2 and all other rights of each of the Guarantors in respect of indemnity, contribution or subrogation from any other Loan Party under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of all Obligations that are then due and payable whether at maturity, by acceleration or otherwise. No failure on the part of any Borrower or any Guarantor to make the payments required by Sections 1 and 2 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to it s obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.

4. Termination. This Agreement shall survive and be in full force and effect until all of the Obligations (as defined in the Security Agreement) have been indefeasibly paid in full (other than contingent indemnification obligations which, pursuant to the terms of the Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations, survive the termination of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations, the Lenders have no further commitment to lend, the L/C Exposure has been reduced to zero or collateralized to the satisfaction of the Administrative Agent and/or the Issuing Bank has no further commitment to issue Letters of Credit under the Amended and Restated Credit Agreement. A Guarantor shall automatically be released from its obligations here under in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of any Borrower (i) in accordance with the terms of Section 6.05 of the Amended and Restated Credit Agreement or (ii) if the Required Lenders shall have consented to such sale, transfer or other disposition (to the extent required by the Amended and Restated Credit Agreement) and the terms of such consent did not provide otherwise. Upon the release of a

27

Guarantor from its obligations under this Agreement pursuant to this Section 4, and at the sole expense of such Guarantor, the Collateral Agent shall execute and deliver to such Guarantor such documents as such Guarantor may reasonably request to evidence such termination or release. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by any Secured Party or any Guarantor upon the bankruptcy or reorganization of any Borrower, any Guarantor or otherwise.

5.              GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 51402).

6.              No Waiver; Amendment. a. No failure on the part of the Collateral Agent or any Guarantor to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy by the Collateral Agent or any Guarantor preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law. None of the Collateral Agent and the Guarantors shall be deemed to have waived any rights hereunder unless such waiver shall be in writing and signed by such parties.

b. Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between the Borrowers, the Guarantors and the Collateral Agent, subject to any consent required in accordance with Section 9.02 of the Amended and Restated Credit Agreement.

7.              Notices. All communications and notices hereunder shall be in writing and given as provided in Section 9.01 of the Amended and Restated Credit Agreement. All communications and notices hereunder to each Guarantor shall be given to it as provided in the Guaranty, with a copy to the Company.

8.              Binding Agreement; Assignments. Whenever in this Ageement 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 the parties that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns. Neither any Borrower nor any Guarantor may assign or transfer any of its rights or obligations hereunder (and any such attempted assignment or transfer shall be void) without the consent required in accordance with Section 9.02 of the Amended and Restated Credit Agreement.

9. Survival of Agreement; Severability. a. All covenants and agreements made by each Borrower and each Guarantor herein and in the certificates or other instruments prepared or delivered in connection with this Agreement or the other Loan Documents shall be considered to have been relied upon by the Collateral Agent, the other Secured Parties and each Guarantor and shall survive the making of the Loans by the Lenders and the issuance of Letters

28

of Credit by the Issuing Bank and shall continue in full force and effect until this Agreement shall terminate.

b. In case any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but 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.

10.            Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall be effective with respect to any Guarantor when a counterpart bearing the signature of such Guarantor shall have been delivered to the Collateral Agent. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

11.            Rules of Interpretation. The rules of interpretation specified in Section 1.03 of the Amended and Restated Credit Agreement shall be applicable to this Agreement.

12. Additional Guarantors. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement each Subsidiary that is a Loan Party that is formed or acquired after the Effective Date is required to execute the Indemnity, Subrogation and Contribution Agreement. Upon execution and delivery, after the date hereof, by the Collateral Agent and such a Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor hereunder. The execution and delivery of any instrument adding an additional Guarantor as a party to this Agreement shall not require the consent of any Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Agreemen t.

29

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date first appearing above.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
	By:
	Name:
	Title:

Signature Page 30 of Indemnity, Subrogation and Contribution Agreement

EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE I HERETO
By:
	Name:
	Title:

Signature Page 31 of Indemnification and Contribution Agreement

BANK OF AMERICA, as Collateral Agent
By:
	Name:
	Title

Signature Page 32 of Indemnification and Contribution Agreement

SCHEDULE I

BORROWERS

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 II

GUARANTORS

ANP Properties I Corp.

Big Star Inc. (f/k/a Supersaver Inc.)

Family Center, Inc.

Futurestore Food Markets, Inc.

Kwik Save, Inc.

Limited Foods, Inc.

Montvale Holdings, Inc.

Richmond Twice, Incorporated

Super Fresh Food Markets of Maryland, Inc.

Super Fresh Food Markets of Virginia, Inc.

Supermarket Distribution Services, Inc.

2008 Broadway, Inc.

1046 Yonkers Ave. Corp.

1 I l North Avenue Realty Corp.

Clay-Park Realty Co., Inc.

Delaware County Dairies, Inc.

Gramatan Foodtown Corp.

Shopwell, Inc. [MA]

Shopwell, Inc. [NJ]

The Food Emporium, Inc. [NY]

The Food Emporium, Inc. [DE]

The Food Emporium, Inc. [NJ]

The Wine Emporium, Inc. [CT]

APW Supermarket Corporation

The Meadows Plaza Development Corp.

Spring Lane Produce Corp.

Borman’s, Inc.

Bev, Ltd.

Farmer Jack Pharmacies, Inc.

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.

Annex 1 to the
Indemnity, Subrogation and
Contribution Agreement

SUPPLEMENT NO.           , dated as of              , to the Indemnity, Subrogation and Contribution Agreement, dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each of the other subsidiaries of the Company listed as a “Borrower” on Schedule I hereto (each such subsidiary individually, a “Borrower” and, collectively, the “Borrowers”), each of the other subsidiaries the Company listed as a “Guarantor” on Schedule II hereto (each such subsidiary individually, a “Guarantor” and, collectively, the “Guarantors”) and BANK OF AMERICA, N.A., (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as such term is defined in the Security Agreement).

A.            Reference is made to (a) the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), Bank of America, as administrative agent (in such capacity, the “Administrative Agent”), and the Collateral Agent and (b) the Guaranty made by each Guarantor in favor of the Secured Parties dated as of December 3, 2007.

B.            Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Indemnity, Subrogation and Contribution Agreement and the Amended and Restated Credit Agreement, as applicable.

C. The Borrowers and the Guarantors have entered into the Indemnity, Subrogation and Contribution Agreement in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement each Subsidiary that is a Loan Party that is formed or acquired after the Effective Date is required to execute the Indemnity, Subrogation and Contribution Agreement. Section 12 of the Indemnity, Subrogation and Contribution Agreement provides that additional Subsidiaries may become Guarantors under the Indemnity, Subrogation and Contribution Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Guarantor”) is executing this Supplement in accordance with the requirements of the Amended and Restated Credit Agreement to become a Guarantor under the Indemnity, Subrogation and Contribution Agreement in order to induce the Lender to make additional Loans and the Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.

Accordingly, the Collateral Agent and the New Guarantor agree as follows:

SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation and Contribution Agreement, the New Guarantor by its signature below becomes a Guarantor under the Indemnity, Subrogation and Contribution Agreement with the same force and effect as if originally named therein as a Guarantor and the New Guarantor hereby agrees to all the terms and provisions of the Indemnity, Subrogation and Contribution Agreement applicable to it as a Guarantor thereunder. Each reference to a “Guarantor” in the Indemnity, Subrogation and Contribution Agreement shall be deemed to include the New Guarantor. The Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein by reference.

SECTION 2. The New Guarantor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Guarantor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.

SECTION 4. Except as expressly supplemented hereby, the Indemnity, Subrogation and Contribution Agreement shall remain in full force and effect.

SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402).

SECTION 6. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, neither party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Indemnity, Subrogation and Contribution Agreement shall not in any way be affected or impaired (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 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.

SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 7 of the Indemnity, Subrogation and Contribution Agreement. All

38

communications and notices hereunder to the New Guarantor shall be given to it at the address set forth under its signature below, with a copy to the Company.

SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for their reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.

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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly executed this Supplement to the Indemnity, Subrogation and Contribution Agreement as of the day and year first above written.

[NAME OF NEW GUARANTOR]

B y:

Name:

Title:

Address:

BANK OF AMERICA, N.A. as Collateral Agent

B y:

Name:

Title:

Address:

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SCHEDULE I

Borrowers

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SCHEDULE II

Guarantors

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EXHIBIT E: Form of Perfection Certificate

PERFECTION CERTIFICATE

Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among The Great Atlantic & Pacific Tea Company, Inc. (the “Company”), the other borrowers party thereto (such borrowers, together with the Company, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not defined herein have the meanings assigned in the Amended and Restated Credit Agreement or the Security Agreement referred to therein, as applicable.

The undersigned hereby certifies to the Collateral Agent and each other Secured Party

that:

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(a) 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(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a).

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 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(a) attached hereto or otherwise disclosed in Section 1, all Accounts Receivable have been originated by the Grantors, 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 Uniform Commercial Code filing office identified with respect to such Grantor in Section 2 hereof, and such search reports reflect no liens against any of the Collateral other than those permitted under the Amended and Restated Credit Agreement and liens that will be terminated on the Restatement Effective Date.

5.               UCC Filings. Financing statements on Form UCC-1 and Form UCC-3 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 2 hereof.

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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 Granto rs.

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 principal amount of $1,000,000 or more held by any Grantor, including all intercompany 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

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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 $500,000 held by any Grantor, including a brief description thereof.

[signature page follows]

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IN WITNESS WHEREOF, the undersigned has duly executed this certificate on this              day of                  , 20   .

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

By:

Name:

Title:

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EXHIBIT F - Form of Pledge Agreement

PLEDGE AGREEMENT (this “Agreement”), dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each Subsidiary of the Company listed on Schedule I hereto (each such Subsidiary individually a “Subsidiary Pledgor” and collectively, the “Subsidiary Pledgors”; the Company and the Subsidiary Pledgors are referred to collectively herein as the “Pledgors”), BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as collateral agent (in such capaci ty, the “Collateral Agent”) for the Secured Parties (as defined in the Security Agreement defined below).

Reference is made to (a) the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral Agent, (b) the Guaranty, dated as of December 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), made by the Guarantors named therein (the “Guarantors”) in favor of the Collateral Agent for its own benefit and the benefit of the other Secured Parties, and (c) the Security Agreement, dated as of December 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), among the Grantors named therein and the Collateral Agent. Capitalized terms used herein and not defined herein shall have meanings assigned to such terms in the Amended and Restated Credit Agreement. Unless otherwise defined herein or in the Amended and Restated Credit Agreement or the Security Agreement or the context otherwise requires, the following terms, together with uncapitalized terms used herein which are defined in the UCC (as defined in the Amended and Restated Credit Agreement), have the respective meanings provided in the UCC: (i) Certificated Security, (ii) Financial Asset; (iii) Investment Property; (iv) Payment Intangibles; (v) Proceeds; (vi) Securities Account; (vii) Securities Intermediary; (viii) Security; (ix) Security Certificate; (x) Uncertificated Security; and (xi) Security Entitlement.

The Lenders have agreed to make Loans to the Borrowers, and the Issuing Bank has agreed to issue Letters of Credit for the account of the Borrowers, pursuant to, and upon the terms and subject to the conditions specified in, the Amended and Restated Credit Agreement. Pursuant to the Guaranty each of the Guarantors has agreed to guarantee, among other things, all the obligations of the Borrowers under the Amended and Restated Credit Agreement and the other Loan Documents. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are conditioned upon, among other things, the execution and delivery by the Pledgors of an agreement in the form hereof to secure the Obligations (as defined in the Security Agreement).

Accordingly, the Pledgors and the Collateral Agent, on behalf of itself and each Secured Party (and each of their respective successors or assigns), hereby agree as follows:

1. Pledge. As security for the payment and performance, as the case may be, in full of the Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, each Pledgor hereby pledges to

the Collateral Agent, its successors and assigns, 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 the Pledgor’s right, title and interest in, to and under: (a) all Equity Interests owned by it representing ownership interests in the Subsidiaries listed on Schedule II hereto and any Equity Interests representing ownership interests in any Subsidiaries obtained in the future by each Pledgor and all other Securities, Securities Entitlements, Securities Accounts and other Investment Property or Financial Asset and the Security Certificates and/or Instruments representing all such Equity Interests (the “Pledged Securities”); provided that the Pledged Securities shall not include (i) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subs idiary, (ii) to the extent that applicable law requires that a Subsidiary of the Pledgor issue directors’ qualifying shares, such qualifying shares, (iii) any permit, lease, license, contract, agreement, or other instrument to which any Pledgor is a party to the extent such Pledgor 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 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), provided that the Proceeds from any such lease, license, contract, agreement, or other instrument shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited, (iv) the Bermuda Shares (as defined in the Securi ty Agreement) and (v) the joint venture interest owned by Waldbaum, Inc. in McLean Plaza Associates to the extent Waldbaum, Inc. is prohibited from granting a Lien in its rights therein pursuant to the terms of any shareholder or other agreement relating to such joint venture, provided that the Proceeds from such joint venture interest shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited; (b) subject to Section 5, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed or distributable, in respect of, in exchange for or upon the conversion of the Pledged Securities referred to in clause (a) above; (c) subject to Section 5, all rights and privileges of the Pledgor with respect to the Pledged Securities and other property referred to in clauses (a) and (b) above; and (d) all Proceeds of any of the foregoing (the items referred to in clauses (a) t hrough (d) above being collectively referred to as the “Collateral”). Upon delivery to the Collateral Agent, (a) any stock certificates or other Certificated Securities now or hereafter included in the Collateral shall be accompanied by stock powers duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request and (b) all other property comprising part of the Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the Pledged Securities theretofore and then being pledged hereunder, which schedule shall be attached hereto as Schedule II and made a part hereof. Each schedule so delivered shall supplement any prior schedules so delivered.< /font>

TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth.

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2.              Delivery of the Collateral

a.               Each Pledgor agrees promptly to:

i.                in the case of Collateral constituting Certificated Securities, transfer thereof to the Collateral Agent or its nominee or custodian by physical delivery to the Collateral Agent or its nominee or custodian, such Collateral to be in suitable form for transfer by delivery, or accompanied by undated instruments of transfer or assignment duly executed in blank;

ii.               in the case of Collateral constituting Uncertificated Securities, (A) register the same on the books and records of the issuer thereof in the name of the Collateral Agent or its nominee or custodian (who may not be a Securities Intermediary) or (B) cause the issuer thereof to execute and deliver an effective agreement, substantially in form reasonably satisfactory to the Collateral Agent, pursuant to which such issuer agrees that it will comply with instructions originated by the Collateral Agent or such nominee or custodian without further consent of the registered owner of such Collateral or any other Person;

iii.              in the case of Collateral constituting Security Entitlements or other Financial Assets deposited in or credited to a Securities Account, (A) complete all actions necessary to constitute the Collateral Agent or its nominee or custodian the entitlement holder with respect to each such Security Entitlement or (B) cause the relevant Securities Intermediary to execute and deliver an effective control agreement pursuant to which such Securities Intermediary agrees to comply with all entitlement orders originated by the Collateral Agent or such nominee or custodian without further consent by the relevant entitlement holder or any other Person;

iv.             in the case of Equity Interests which do not constitute Securities, (A) comply with the provisions of clause (i) above for each such item of Collateral which is represented by a certificate and (B) comply with the provisions of clause (ii) above for each such item of Collateral which is not evidenced by a certificate;

v.              in the case of cash, comply with the provisions of Section 5.14 of the Amended and Restated Credit Agreement; and

vi.             upon the Collateral Agent’s request, in each case perform or cause the performance of such additional or alternative procedures as may hereafter become appropriate to grant control of, or otherwise perfect a security interest in, any Collateral in favor of the Collateral Agents or their nominee or custodian, consistent with changes in applicable Law or regulations or the interpretation thereof.

b. After the Restatement Effective Date, promptly upon any Pledgor acquiring any Pledged Securities, and any original certificates or other instruments or documents representing such Pledged Securities, such Pledgor shall deliver or cause to be delivered to the Collateral Agent such Pledged Securities in accordance with the applicable requirements of Paragraph 2(a) hereof.

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3. Representations, Warranties and Covenants. Each Pledgor hereby represents, warrants and covenants, as to itself and the Collateral pledged by it hereunder, to and with the Collateral Agent that:

a.             the Pledged Securities represent that percentage as set forth on Schedule II of the issued and outstanding Equity Interests of each class of the Equity Interests of the issuer with respect thereto;

b.             except for the security interest granted hereunder and except as may otherwise be permitted pursuant to Sections 6.02 and 6.05 of the Amended and Restated Credit Agreement, the Pledgor (i) is and will at all times continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II, (ii) holds the same free and clear of all Liens other than Liens in favor of the Collateral Agent for the benefit of Secured Parties, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Collateral, other than pursuant hereto, and (iv) will cause any and all Collateral, whether for value paid by the Pledgor or otherwise, to be forthwith pledged or assigned hereunder, and, to the exte nt required by terms hereof, delivered to or deposited with the Collateral Agent;

c.             no Collateral is in the possession or control of any Person asserting any claim thereto or security interest therein, except that the Collateral Agent or its nominees, custodian or a Securities Intermediary acting on its behalf may have possession and/or control of Collateral as contemplated hereby and by the other Loan Documents;

d.             the Pledgor (i) has the power and authority to pledge the Collateral in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than the Lien created by this Agreement and Liens expressly permitted by Section 6.02 of the Amended and Restated Credit Agreement arising by operation of law) however arising, of all persons whomsoever;

e.             no consent of any other person (including equity holders or creditors of any Pledgor) and no consent or approval of any Governmental Authority or any securities exchange was or is necessary to the validity of the pledge effected hereby, or to the exercise by the Collateral Agent of its remedies hereunder, including the disposition of the Collateral upon the occurrence of an Event of Default in accordance with the terms of the Loan Documents;

f.              by virtue of the execution and delivery by the Pledgors of this Agreement, when the Pledged Securities, certificates or other documents representing or evidencing the Collateral are delivered to the Collateral Agent in accordance with this Agreement together with the other instruments of transfer described in Sections 1 and 2 hereof, the Collateral Agent will obtain a valid and perfected first lien upon and security interest in such Pledged Securities as security for the payment and performance of the Obligations, subject only to Liens permitted under Section 6.02 of the Amended and Restated Credit Agreement;

g.             the pledge effected hereby is effective to vest in the Collateral Agent, on behalf of the Secured Parties, the rights of a secured party in the Collateral as set forth herein;

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h.             all of the Pledged Securities have been duly authorized and validly issued and are fully paid and (to the extent representing the capital stock of a corporation) nonassessable;

i.              all information set forth herein relating to the Pledged Securities is accurate and complete in all material respects as of the date hereof;

j.              the pledge of the Pledged Securities pursuant to this Agreement does not violate Regulation T, U or X of the Federal Reserve Board or any successor thereto as of the date hereof;

k.             on or prior to the Effective Date, such Pledgor shall deliver its Perfection Certificate to the Collateral Agent and shall cause all filings and recordings and other actions specified on Schedule 3.15(b) and Schedule 3.15(c) to the Amended and Restated Credit Agreement to have been completed. The information set forth in the Perfection Certificate shall be correct and complete as of the Effective Date;

1. such Pledgor will not change its name or location (determined as provided in Section 9-307 of the UCC) in any manner, in each case unless it shall have given the Collateral Agent at least fifteen (15) days’ (or such shorter period of time as may be agreed to by the Collateral Agent) prior notice thereof. Such Pledgor shall not in any event change its name or location (determined as provided in Section 9-307 of the UCC), if such change would cause the Security Interests in any Collateral to lapse or cease to be perfected unless such Pledgor has taken on or before the date of lapse all actions necessary to ensure that the Security Interests in the Collateral do not lapse or cease to be perfected;

m.            such Pledgor will not sell, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral or create or suffer to exist any Lien (other than the Security Interests and Liens permitted under Section 6.02 of the Amended and Restated Credit Agreement) on any Collateral except that, such Pledgor may sell, exchange, assign or otherwise dispose of, or grant options with respect to, Collateral to the extent permitted by the Amended and Restated Credit Agreement, whereupon, in the case of any such disposition, the Security Interests created hereby in such item (but not in any Proceeds received by such Pledgor arising from such disposition) shall cease immediately without any further action on the part of the Collateral Agent;

n.             in the event that any issuer of Collateral at any time issues any additional or substitute stock, other securities, limited liability company membership interests, partnership interests, promissory notes or other instruments to such Pledgor, such Pledgor will promptly deliver all such items to the Collateral Agent in accordance with Section 2 to hold as Collateral hereunder.

o. such Pledgor will, promptly upon request, provide to the Collateral Agent all information and evidence it may reasonably request concerning the Collateral to enable the Collateral Agent to enforce the provisions of this Agreement.

4. Registration in Nominee Name; Denominations. The Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the Pledgors, endorsed or assigned in blank or in favor of the

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Collateral Agent or, upon the occurrence and during the continuance of an Event of Default, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). Prior to the occurrence of an Event of Default, the Collateral Agent shall have the right (as it reasonably deems necessary), and after the occurrence of and during the continuance of an Event of Default shall have the absolute right, to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.

5.Voting Rights; Dividends and Interest, etc.

a. Unless and until an Event of Default shall have occurred and be continuing and delivery by the Collateral Agent to the applicable Pledgor of a notice of its intent to exercise its rights hereunder:

i.              Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Amended and Restated Credit Agreement and the other Loan Documents; provided, however, that such Pledgor will not be entitled to exercise any such right if the result thereof could materially and adversely affect the rights inuring to a holder of the Pledged Securities or the rights and remedies of any of the Secured Parties under this Agreement or the Amended and Restated Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same.

ii.             The Collateral Agent shall execute and deliver to each Pledgor, or cause to be executed and delivered to each Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above and to receive the cash dividends it is entitled to receive pursuant to paragraph (b) below.

b. Unless and until a Triggering Event shall have occurred, each Pledgor shall be entitled to receive and retain any and all cash dividends, interest and principal paid on the Pledged Securities to the extent and only to the extent that such cash dividends, interest and principal are permitted by, and otherwise paid in accordance with, the terms and conditions of the Amended and Restated Credit Agreement, the other Loan Documents and applicable laws. All Pledged Securities, whether received as a dividend or other distribution, or resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a part y or otherwise, shall be and become part of the Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent, and all Pledged Securities in respect thereof shall be promptly delivered to the Collateral Agent in the same form as so received (with any necessary endorsement).

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c.               Upon the occurrence of Triggering Event, all rights of any Pledgor to dividends, interest or principal that such Pledgor is authorized to receive pursuant to paragraph (b) above shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest or principal. All dividends, interest or principal received by the Pledgor contrary to the provisions of this Section 5 shall be held in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Pledgor and shall be promptly deposited in the Agent’s Account or otherwise delivered to the Collateral Agent in the same form as so received (with any necessary endorsement). Any a nd all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (c) shall be applied in accordance with Section 5.14 of the Amended and Restated Credit Agreement.

d.             Upon the occurrence and during the continuance of an Event of Default and delivery by the Collateral Agent to the applicable Pledgor of a notice of its intent to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 5, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers, provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived, such Pledgor will have the right to exercise the voting and consensual rights and powers that it would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.

6.                     Remedies upon Default.

a.             Upon the occurrence and during the continuance of an Event of Default, subject to applicable regulatory and legal requirements, the Collateral Agent may sell the Collateral, or any part thereof, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it commercially reasonable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and d eliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and, to the extent permitted by applicable law, the Pledgors hereby waive all rights of redemption, stay, valuation and appraisal any Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

b.             The Collateral Agent shall give a Pledgor ten (10) days’ prior written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of such Pledgor’s Collateral. Such notice shall contain the information specified in Section 9-613 of the UCC and, in the case

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of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange and, in the case of a private sale, shall state the day after which such sale may be consummated. Any such 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 such sale, 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 to be commercially reasonable. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale 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. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid in full by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice . At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section 6, any Secured Party may bid for or purchase, free from any right of redemption, stay or appraisal on the part of any Pledgor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to it from such Pledgor as a credit against the purchase price, and it may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to such Pledgor therefor. For purposes hereof, (a) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (b) the Collateral Agent shall be free to carry out such sale pursuant to such agreement and (c) such Pledgor shall not 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; provided, however, that all proceeds from such sale shall be applied in the manner provided in Section 7 below. 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. Any sale pursuant to the provisions of this Section 6 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-627 of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions.

7.Application of Proceeds of Sale.

a. After the occurrence of and during the continuance of an Event of Default, the proceeds of any sale of Collateral pursuant to Section 6, as well as any Collateral consisting of cash, shall be applied by the Collateral Agent in accordance with Section 6.02 of the Security Agreement.

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b. 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 purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser of 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.

8.Reimbursement of Collateral Agent.

a.             Without limitation of its indemnification obligations under the other Loan Documents, each Pledgor agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable expenses, including the reasonable fees, other charges and disbursements of its counsel and of any experts or agents, that the Collateral Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or observe any of the provisions hereof.

b.             Without limitation of its indemnification obligations under the other Loan Documents, each Pledgor agrees to indemnify the Collateral Agent and each Indemnitee (as defined in Section 9.03(b) of the Amended and Restated Credit Agreement) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, other charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions and the other transa ctions contemplated thereby or (ii) any claim, litigation, investigation or proceeding relating to any of the foregoing, 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 amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this Section 8 shall remain operative and in full force and effect regardless of the termination of his Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 8 shall be payable on written demand therefor and shall bear interest at the rate specified in Section 2.13(c) of the Amended and Restated Credit Agreement.

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9.Collateral Agent Appointed Attorney-in-Fact

a. Each Pledgor hereby appoints the Collateral Agent and any other officer or agent thereof the true and lawful attorney-in-fact of such Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem reasonably necessary or advisable (in its reasonable judgment) to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, (i) upon the occurrence and during the continuance of a Triggering Event, with full power of substitution either in the Collateral Agent’s name or in the name of such Pledgor, to endorse checks, drafts, orders and other instruments for the payment of money payable to the Pledgor representing any interest or dividend or other distr ibution payable in respect of the Collateral or any part thereof or on account thereof and to give full discharge for the same, and to take any other action necessary to effectuate the provisions of Section 5(c) hereof and (ii) upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of such Pledgor, to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral, to settle, compromise, prosecute or defend any action, claim or proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer and to make any agreement respecting, or otherwise deal with, the same; provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, 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. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.

10.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 other Secured Parties under the other Loan 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 consent to any departure by any Pledgor 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 e ffective only in the specific instance and for the purpose for which given. No notice or demand on any Pledgor in any case shall entitle such Pledgor 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 a written agreement entered into between the Collateral Agent and

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the Pledgor or Pledgors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 9.02 of the Amended and Restated Credit Agreement.

11.            Securities Act, etc. In view of the position of the Pledgors in relation to the Pledged Securities, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged Securities permitted hereunder. Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged Securities, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Securities could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Securities under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Pledgor recognizes that in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of the Pledged Securities, limit the purchasers to those who will agree, among other things, to acquire such Pledged Securities for their own account, for investment, and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Collateral Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Pledgor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 11 will apply notwithstanding the existence of a public or private market upon which the quotations or sales pric es may exceed substantially the price at which the Collateral Agent sells.

12.            Security Interest Absolute. All rights of the Collateral Agent hereunder, the grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Amended and Restated Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) 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 Amended and Restated Credit Agreement, any other Loan Document or any other agreement or instrument relating to any of the foregoing, (c) any exchange, release or nonperfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guaranty, for all or any of the Obligations or (d) any extension, renewal, settlement, compromise, acceleration, waiver or release in respect of any obligation of any other

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Pledgor under any Loan Document or any other agreement or instrument evidencing or securing any Obligation, by operation of law or otherwise; (e) any change in the existence, structure or ownership of any Pledgor, or any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Pledgor or its assets or any resulting disallowance, release or discharge of all or any portion of any Obligation; (f) the existence of any claim, set-off or other right which any Pledgor may have at any time against the Borrower, any other Pledgor, any 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; (g) any failure by any Secured Party: (A) to file or enforce a claim against any Pledgor or its estate (in a bankruptcy or other proceeding); (B) to give notice of the existence, creation or incurrence by any Pledgor of any new or additional indebtedness or obligation under or with respect to the Obligations; (C) to commence any action against any Pledgor; (D) to disclose to any Pledgor any facts which such Secured Party may now or hereafter know with regard to any Pledgor; or (E) to proceed with due diligence in the collection, protection or realization upon any collateral securing the Obligations; (h) any direction as to application of payment by the Borrowers, any other Pledgor or any other Person; (i) any subordination by any Secured Party of the payment of any Obligation to the payment of any other liability (whether matured or unmatured) of any Pledgor to its creditors; (j) any act or failure to act by any Collateral Agent or any other Secured Party under this Agreement or otherwise which may deprive any Pledgor of any right to subrogation, contribution or reimbursement against any other Pledgor or any right to recover full indemnity for any payments made by such Pledgor in respect of the Obligations; (k) any other act or omission to act or delay of any kind by any Pledgor or any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this clause, constitute a legal or equitable discharge of any Pledgor’s obligations hereunder; or (1) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Obligations or in respect of this Agreement (other than the indefeasible payment in full of all the Obligations and the termination of the commitments of the Lenders).

13.                 Termination or Release

a.               This Agreement and the security interests granted hereby shall terminate when all the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations, survive the termination of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations, the Lenders have no further commitment to lend, the L/C Exposure and any Obligations in respect of Bank Products or Cash Management Services have been reduced to zero or collateralized to the satisfaction of the Administrative Agent and the Issuing Bank has no further commitment to issue Letters of Credit under the Amended and Restated Credit Agreement.

b.              In the event that all of the Equity Interests of such Pledgor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of any Borrower (i) in accordance with the terms of Section 6.05 of the Amended and Restated Credit Agreement or (ii) if the Required Lenders shall have consented to such sale, transfer or other disposition (to the

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extent required by the Amended and Restated Credit Agreement) and the terms of such consent did not provide otherwise, the security interest in such Collateral shall be automatically released.

c. In connection with any termination or release pursuant to paragraph (a) or (b), the Collateral Agent shall execute and deliver to any Pledgor, at such Pledgor’s expense, all documents that such Pledgor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 13 shall be without recourse to or warranty by the Collateral Agent.

14.            Notices. All communications and notices hereunder shall be in writing and given as provided in Section 9.01 of the Amended and Restated Credit Agreement. All communications and notices hereunder to any Subsidiary Pledgor shall be given to it at the address for notices set forth on Schedule I.

15.            Further Assurances. Each Pledgor agrees to do such further acts and things, and to execute and deliver such additional conveyances, assignments, agreements and instruments, as the Collateral Agent may at any time reasonably request in connection with the administration and enforcement of this Agreement or with respect to the Collateral or any part thereof or in order better to assure and confirm unto the Collateral Agent its rights and remedies hereunder. Such Pledgor will, from time to time at its expense and in such manner and form as the Collateral Agent may reasonably request, execute, deliver, file and record any financing statement, specific assignment, instrument, document, agreement or other paper and take any other action (i ncluding, without limitation, any filings of financing or continuation statements under the UCC) that from time to time may be necessary or advisable, or that the Collateral Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Collateral Agent and the Secured Parties to obtain the full benefit of this Agreement or to exercise and enforce any of its rights, powers and remedies created hereunder or under applicable Law with respect to any of the Collateral. Such Pledgor shall maintain the security interests created by this Agreement as security interests having at least the priority described in Section 3(b) and shall defend such security interests and such priority against the claims and demands of all Persons to the extent adverse to such Pledgor’s ownership rights or otherwise inconsistent with this Agreement or the other Loan Documents. To the extent permitted by applicable Law, such Pledgor hereby authorizes the Collateral Agent to exec ute and file, in the name of such Pledgor or otherwise and without the signature or other separate authorization or authentication of such Pledgor appearing thereon, such UCC financing statements or continuation statements as the Collateral Agent in its sole discretion may deem necessary or appropriate to further perfect or maintain the perfection of the Security Interests. The Pledgors shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.

16. Binding Effect; Several Agreement; Assignments. 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 Pledgor that are contained in this Agreement shall bind and inure to the benefit of its successors and assigns. This Agreement shall become effective as to any Pledgor when a counterpart hereof executed on behalf of such Pledgor shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter

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shall be binding upon such Pledgor and the Collateral Agent and their respective successors and assigns, and shall inure to the benefit of such Pledgor, the Collateral Agent and the other Secured Parties, and their respective successors and assigns, except that no Pledgor shall have the right to assign its rights hereunder or any interest herein or in the Collateral (and any such attempted assignment shall be void), except as expressly contemplated by this Agreement or the other Loan Documents. A Pledgor shall automatically be released from its obligations hereunder and the security interest in the Collateral of such Pledgor shall be automatically released in the event that all the capital stock of such Pledgor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of any Borrower (i) in accordance with the terms of Section 6.05 of the Amended and Restated C redit Agreement or (ii) if the Required Lenders shall have consented to such sale, transfer or other disposition (to the extent required by the Amended and Restated Credit Agreement) and the terms of such consent did not provide otherwise. Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under the Amended and Restated Credit Agreement to any person that is not a Pledgor, or, upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 9.02(b) of the Amended and Restated Credit Agreement, the security interest in such Collateral shall be automatically released. This Agreement shall be construed as a separate agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or released with respect to any Pledgor without the approval of any other Pledgor and without affecting the obligations of any other Pledgor hereunder.

17.               Survival of Agreement; Severability

a.               All covenants, agreements, representations and warranties made by each Pledgor herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Collateral Agent and the other Secured Parties and shall survive the making by the Lenders of the Loans and the issuance of the Letters of Credit by the Issuing Bank, regardless of any investigation made by the Secured Parties or on their behalf, and shall continue in full force and effect until this Agreement shall terminate.

b.              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 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, illega l or unenforceable provisions.

18. 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).

19.            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

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a single contract, and shall become effective as provided in Section 16. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

20.          Rules of Interpretation. The rules of interpretation specified in Section 1.03 of the Amended and Restated Credit Agreement shall be applicable to this Agreement. Section headings used herein are for convenience 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. This Agreement governs relationship between the parties hereto relating to the Collateral described herein; in the event of any conflict between the provisions of this Agreement and the provisions of the Security Agreement, this Agreement shall control.

21.          Jurisdiction; Consent to Service of Process.

a.             Each Pledgor 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 Loan 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 Loan Document shall affect any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any of the Pledgors or their respective properties in the courts of any jurisdiction.

b.             Each Pledgor 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 Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby 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 14. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

22. 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 LOAN 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

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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.

23.          Additional Pledgors. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement, each Subsidiary of the Company that that was not in existence or not a Subsidiary on the date of the Amended and Restated Credit Agreement is required to become a Loan Party and to enter in this Agreement as a Subsidiary Pledgor upon becoming a Subsidiary if such Subsidiary owns or possesses property of a type that would be considered Collateral hereunder. Upon execution and delivery by the Collateral Agent and such Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall become a Subsidiary Pledgor hereunder with the same force and effect as if originally named as a Subsidiary Pledgor herein. The execution and delivery of such instrument shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Subsidiary Pledgor as a party to this Agreement. In addition to the foregoing, the Company shall cause each Person that owns the Equity Interests of a Subsidiary of the Company that is a Loan Party that was not in existence or not a Subsidiary on the date of the Amended and Restated Credit Agreement promptly upon acquiring such Equity Interests to enter in this Agreement as a Subsidiary Pledgor (to the extent not already a party hereto). Each Pledgor hereby authorizes the Collateral Agent to supplement this Agreement by supplementing the Schedules hereto or adding additional schedules hereto to specifically identify any Pledgor or Equity Interest that becomes subject to this Agreement.

24.          Execution of Financing Statements

Pursuant to Section 9-509 of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions, each Pledgor authorizes the Collateral Agent to file financing statements with respect to the Collateral owned by it without the signature of such Pledgor in such form and in such filing offices as the Collateral Agent reasonably determines are necessary to perfect the security interests of the Collateral Agent under this Agreement. A carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement for filing in any jurisdiction. Each Pledgor also authorizes the Collateral Agent to take any and all actions required by any applicable Law to perfect and protect the security interest granted hereunder. Each Pledgor shall provide the Collateral Agent with any information the Collateral Agent shall reas onably request in connection with any of the foregoing.

[SIGNATURE PAGES FOLLOW]

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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.

B y:

Name:

Title:

Signature Page to Pledge Agreement

EACH OF THE SUBSIDIARY PLEDGORS LISTED ON SCHEDULE I HERETO

B y:

Name:

Title:

Signature Page to Pledge Agreement

BANK OF AMERICA, N.A., as Collateral Agent

By:

Name: Stephen L. DeMenna

Title: Managing Director

Signature Page to Pledge Agreement

SCHEDULE I

Subsidiary Pledgors

SCHEDULE II

Capital Stock

Annex 1 to the
Pledge Agreement

SUPPLEMENT NO.                  , dated as of                          , 20   to the PLEDGE AGREEMENT (the “Pledge Agreement”), dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), each Subsidiary of the Company listed on Schedule I hereto (each such Subsidiary individually a “Subsidiary Pledgor” and collectively, the “Subsidiary Pledgors”; the Company and the Subsidiary Pledgors are referred to collectively herein as the “Pledgors”) and Bank of America, N.A., a national banking association (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined in the Security Agreement defined below).

a.               Reference is made to (a) the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral Agent, (b) the Guaranty, dated as of December 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), made by the guarantors named therein in favor of the Collateral Agent for its own benefit and the benefit of the other Secured Parties and (c) the Security Agreement, dated as of D ecember 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), among the Grantors named therein and the Collateral Agent.

b.              Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Amended and Restated Credit Agreement.

c. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement, each Subsidiary of the Company that was not in existence or not a Subsidiary on the date of the Amended and Restated Credit Agreement is required to become a Loan Party and to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a Subsidiary if such Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Section 23 of the Pledge Agreement provides that such Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Pledgor”) is executing this Supplement in accordance with the requirements of the Amended and Restated Credit Agreement to become a Subsidiary Pledgor under the Pledge Agreement in order to induce the Lenders to make additional Loans and the Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.

Accordingly, the Collateral Agent and the New Pledgor agree as follows:

SECTION 1. In accordance with Section 23 of the Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to all the

terms and provisions of the Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents and warrants that the representations and warranties made by it as a Pledgor thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing, the New Pledgor, as security for the payment and performance in full of the Obligations (as defined in the Pledge Agreement), does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Pledgor’s right, title and interest in and to the Collateral (as defined in the Pledge Agreement) of the New Pledgor. Each reference to a “Subsidiary Pledgor” or a “Pledgor” in the Pledge Agreement shall be deemed to include the New Pledgor. The Pledge Agreement is her eby incorporated herein by reference.

SECTION 2. The New Pledgor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Pledgor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.

SECTION 4. The New Pledgor hereby represents and warrants that set forth on Schedule I attached hereto is a true and correct schedule of all its Pledged Securities.

SECTION 5. Except as expressly supplemented hereby, the Pledge Agreement shall remain in full force and effect.

SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 51402).

SECTION 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, neither party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Pledge Agreement shall not in any way be affected or impaired. 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.

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SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 14 of the Pledge Agreement. All communications and notices hereunder to the New Pledgor shall be given to it at the address set forth under its signature hereto.

SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.

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IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly executed this Supplement to the Pledge Agreement as of the day and year first above written.

[Name of New Pledgorl

B y:

Name:

Title:

BANK OF AMERICA, as Collateral Agent

By:

Name:

Title:

Schedule I

Subsidiary Pledgors

Pledged Securities of the New Pledgor

EQUITY INTERESTS

Issuer Number of
Certificate Registered Owner Number and
Class of
Shares Percentage of
Shares

[To be completed and attached to Supplement No.      

EXHIBIT G - Form of Security Agreement

SECURITY AGREEMENT (this “Agreement”) dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the “Company”), a Maryland corporation, each subsidiary of the Company listed on Schedule I hereto (each such subsidiary individually a “Borrower” and collectively with the Company, the “Borrowers”), each subsidiary of the Company listed on Schedule II hereto (each such subsidiary individually a “Guarantor” and collectively, the “Guarantors”; each other subsidiary of the Borrowers or the Guarantors which hereafter becomes party hereto in accordance with Section 4.17 (the Borrowers, the Guarantors and such other subsidiaries are also referred to collectively herein as the “Grantors”), and BANK OF AMERICA, N.A., a na tional banking association (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined herein).

Reference is made to (a) the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral Agent, and (b) the Guaranty dated as of December 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), made by the Guarantors in favor of the Collateral Agent for its own benefit and for the benefit of the other Secured Parties. Capitalized ter ms used herein and not defined herein shall have the meanings assigned to such terms in the Amended and Restated Credit Agreement.

The Lenders have agreed to make Loans to the Borrowers, and the Issuing Bank has agreed to issue Letters of Credit for the account of the Borrowers, pursuant to, and upon the terms and subject to the conditions specified in, the Amended and Restated Credit Agreement. Each of the Guarantors has agreed to guarantee, among other things, all the obligations of the Borrowers under the Amended and Restated Credit Agreement and the other Loan Documents. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are conditioned upon, among other things, the execution and delivery by the Grantors of an agreement in the form hereof to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers under the Amended and Restated Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of L/C Disbursements, interest thereon and obligations to provide cash collateral, (iii) obligations to repay overdraft amounts plus interest, if any, customarily applied on overdrafts and all obligations (including without limitation fees, costs, expenses and indemnities) owed to any Lender or an Affiliate of a Lender arising from any Bank Products or Cash Management Services provided by a Lender or Affiliate of a Lender to any Loan Party and (iv) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties to the Secured Parties

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under the Amended and Restated Credit Agreement and the other Loan Documents, (b) the due and punctual perfoimance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Amended and Restated Credit Agreement and the other Loan Documents, (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Loan Party under or pursuant to this Agreement or the other Loan Documents (including, without limitation, the Obligations (as defined in the Guaranty) of the Guarantors pursuant to the Guaranty), and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender or an Affiliate of a Lender at the time such Hedging Agreement was entered into (all the monetary and other obligations described in the preceding clauses (a) through (d) being collectively called the “Obligations”).

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:

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 Amended and Restated Credit Agreement and 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:

“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

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receivables (as defined in the UCC), and (iii) account receivables, receivables and 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.

“Amended and Restated Credit Agreement” shall have the meaning given to that term in the preliminary statement of this Agreement.

“Bermuda Shares” means the voting stock of A&P Bermuda Limited, directly or indirectly owned by the Company.

“Blocked Account Bank” shall have the meaning given that term in Section 5.01(b).

“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.

“Certificate of Title” means a certificate of title, certificate of ownership or other registration certificate issued or required to be issued under the certificate of title or other similar Laws of any state for any Equipment or Inventory of any Grantor.

“Certificated Collateral” means each item of Equipment or Inventory which is or is required to be evidenced by a Certificate of Title issued under the motor vehicle or other applicable Laws of any jurisdiction.

“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 VII 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: (a) Accounts Receivable, (b) Chattel Paper, (c) Claims, Judgments and/or Settlements, (d) Deposit Accounts and securities accounts (as defined in the UCC) and all cash and cash equivalents or other assets in each such account, (e) Documents, (f) Equipment, (g) Fixtures, (h) General Intangibles (including Payment Intangibles and Intellectual Property), (i) Goods, (j) Instruments, (k) Inventory, (1) Investment Property, (m) Letter-of-Credit Rights, (n) Software, (o) Supporting Obligations, (p) money, policies and certificates of insurance, deposits,

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cash, or other property, (q) all Books and Records and information relating to any of the foregoing ((a) through (p)) 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, (r) 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 ((a) through (q)) or otherwise, (s) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((a) through (r)), including the right of stoppage in transit, and (t) any of the foregoing, whether now owned or now due, or in which any Grantor has an interest, or her eafter 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 (i) the Bermuda Shares, (ii) any permit, lease, license, contract, agreement, joint venture agreement, or other instrument to which any Grantor is a party and any Equity Interests in a joint venture to the extent 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, 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, 9407, 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), provided that the Proceeds from any such lease, license, contract, agreement, or other instrument or such Equity Interests in a joint venture shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited, and provided further that in no event shall the foregoing exclusions apply to any Subject Lease or any Third Party Lease (as defined in the Mortgages), (iii) any Excluded Equipment owned by any Grantor on the date hereof or hereafter acquired; provided that all proceeds paid or payable to any Grantor from any sale, transfer or assignment or other voluntary or involuntary disposition of such Excluded Equipment and all rights to receive such proceeds shall be included in the Collateral to the extent not otherwise required to be paid to the holder of the Indebtedness secured by such Excluded Equipment; (iv) 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 i mpair the validity or enforceability of such intentto-use trademark applications; (v) assets or Equity Interests acquired by any Grantor after the date hereof in an acquisition permitted by the Amended and Restated Credit Agreement to the extent such assets or Equity Interests are subject to Liens permitted by Section 6.02(d) of the Amended and Restated Credit Agreement and the documents applicable to such Liens prohibit creation of any other security interest on such assets, (vi) any voting Equity Interests of a Foreign Subsidiary in excess of 65% of all outstanding voting Equity Interests of such Foreign Subsidiary and (vii) Fixtures located on, at or in, or affixed to, any Principal Property; 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,

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without 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: (a) 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 (b) all registrations and applications for registration of any such copyright in the United States, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III and any renewals and extensions thereof, (c) 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, (d) 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, (e) all claims for, and rights to sue for, past, present and future infringement of any of the foregoing, (f) 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, (g) 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 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 b y any process now known or hereafter devised, and (h) 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.

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“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.

“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.

“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.

“Excluded Equipment” means at any date any assets of any Grantor which are subject toa Lien securing Indebtedness permitted by Section 6.01(v) of the Amended and Restated Credit Agreement or a purchase money obligation permitted by Section 6.01(vii) of the Amended and Restated Credit Agreement if and to the extent that (i) the express terms of a valid and enforceable restriction in favor of a Person who is not a Borrower or a Guarantor contained in the agreements or documents granting or governing such Indebtedness 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 applicable Grantor and (ii) such restriction relates only to the asset or assets acquired by the applicable Grantor with the proceeds of such Indebtedness or purchase money obligation and attachments thereto or substitutions therefor.

“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 constitute 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.

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“Goods” shall have the meaning given that term in the UCC.

“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.

“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.

“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, including those listed on Schedule IV.

“Obligations” shall have the meaning given to that term in the preliminary statement of this Agreement.

“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

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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 V, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the 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 Annex 1, 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.

“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 (a) all cash and negotiable instruments received by or held on behalf of the Collateral Agent pursuant to the provisions of the Amended and Restated Credit Agreement, this Agreement or otherwise in respect of any Collateral, (b) in the case of Collateral constituti ng 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) (i) past, present or future infringement of any Patent now or hereafter owned by any Grantor, or licensed under a Patent License, (ii) 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, (iii) past, present or future breach of any License and (iv) past, present or future infringement of any Copyright now or hereafter owned by any Grantor or licensed under a Copyright License and (c) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

“Receivables” shall mean all Accounts, all Payment Intangibles, all Instruments, all Chattel Paper and all Letter-of-Credit Rights.

“Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) the Issuing Bank, (e) each counterparty to a Hedging Agreement entered into with any Borrower if such counterparty was a Lender or an Affiliate of a Lender at the time the Hedging Agreement was entered into, (0 the beneficiaries of each indemnification obligation undertaken by any Grantor under any Loan Document, (g) any Lender or Affiliate of a Lender in respect of obligations owed to such Lender or Affiliate of a Lender Bank arising from any Bank Products or Cash Management Services provided by such Lender or Affiliate of a Lender to any Loan Party and (h) the successors and assigns of each of the foregoing.

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“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: (a) 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 applicati ons in the United States Patent and Trademark Office, any State of the United States, or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule VI, (b) all goodwill associated therewith or symbolized thereby and (c) all claims for, and rights to sue for, past, present or future infringements, dilution, or unfair competition with any of the foregoing, (d) 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 (e) all other assets, rights and interests that uniquely reflect or embody such goodwill.

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SECTION 1.03 Rules of Interpretation. The rules of interpretation specified in Sections 1.03 and 1.04 of the Amended and Restated Credit Agreement 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 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:

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

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Material Adverse Effect.

SECTION 3.02              Filings.

(a)             Each 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 for filing in each governmental, municipal or other 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 (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 form hereof 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 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 (for its own benefit and the benefit of the oth er 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).

(c) Fully executed Blocked Account Agreements will be delivered to the Collateral Agent relating to each Blocked Account within ninety (90) days after the Effective Date (or such later date as the Administrative may agree in writing in its discretion) and all other actions shall have been taken by such date 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 (for its own benefit and the benefit of the other Secured Parties) in respect of all Blocked Accounts.

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SECTION 3.03 Validity of Security Interest. The Security Interest constitutes (a) a legal and valid security interest 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 security interest in all Collateral in which a security interest may be perfected by filing, recording or registering a financing 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, upon delivery of a Blocked Account Agreement with respect to a Blocked Account a perfected security interest in such Blocked Account; (ii) Electronic Chattel Paper, upon compliance by the relevant Grantor with Section 4.16 hereof, a perfected security interest in all Electronic Chattel Paper; (iii) Investment Property, a perfected security interest 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 security interest in all Letter-of-Credit Rights; and (d) a perfected security interest 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. The Security Interest is and shall be prior to any other Lien on any of the Collateral, other than Liens expressly permitted pursuant to Section 6.02 of the Amended and Restated Credit Agreement having priority by operation of law or Liens expressly permitted by Section 6.02 of the Amended and Restated Credit Agreement in favor of any other Person expressly permitted to have priority pursuant to any other intercreditor agreement relating to the Collateral to which the Collateral Agent is a party.

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 6.02 of the Amended and Restated Credit Agreement. The Grantors have not (a) filed or consented to the filing of (i) any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Collateral, (ii) 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 (iii) 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 financi ng statement or analogous document, assignment, security agreement or similar instrument is still in effect or (b) 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 6.02 of the Amended and Restated Credit Agreement.

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 except as set forth on Schedule 3.06 hereto.

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

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Instruments or Chattel Paper, an aggregate face value in excess of $1,000,000), other than such Instruments and Chattel Paper listed in Schedule 3.07 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 3.08 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 3.09 hereto.

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 first priority security interest in all the Collateral (subject only to Liens expressly permitted pursuant to Section 6.02 of the Amended and Restated Credit Agreement having priority by operation of law or Liens expressly permitted by Section 6.02 of the Amended and Restated Credit Agreement in favor of any other Person expressly permitted to have priority pursuant to any other intercreditor agreement relating to the Collateral to which the Collateral Agent is a party). 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

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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 of annual financial statements with respect to the preceding fiscal year pursuant to Section 5.01 of the Amended and Restated Credit Agreement, the Borrower shall deliver to the Collateral Agent a certificate executed by a Financial Officer and the chief legal officer of the Borrower (a) 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 (b) certifying that (i) all Uniform Commercial Code financing statements or other appropriat e 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 (a) 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 (ii) valid Blocked Account Agreements are in effect with respect to all Blocked Accounts. Each certificate delivered pursuant to this Section 4.02 shall identify in the format of Schedule III, IV, V, or VI, 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 Col lateral Agent.

SECTION 4.03 Protection of Security. 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 6.02 of the Amended and Restated Credit Agreement and the priority thereof (subject only to Liens expressly permitted pursuant to Section 6.02 of the Amended and Restated Credit Agreement having priority by operation of law or Liens expressly permitted by Section 6.02 of the Amended and Restated Credit Agreement in favor of any other Person expressly permitted to have priority pursuant to any other intercreditor agreement relat ing to the Collateral to which the Collateral Agent is a party).

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. Without limiting the forego ing, 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 Amended and Restated Credit Agreement and to the

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extent perfection in such Collateral can be accomplished by Control). Upon the occurrence and during the continuance of a Triggering Event, if any amount payable by parties other than the Loan Parties 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 shall be immediately pledged and delivered to the Collateral Agent, duly endorsed in a manner satisfactory 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 III, IV, V, or VI, or adding additional schedules hereto to specifically identify 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 to verify under reasonable procedures, in accordance with Section 5.09 of the Amended and Restated Credit Agreement, the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Collateral, including, but only upon the occurrence and during the continuance of a Default, in the case of 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 have the absolute right to share any information it gains from such inspection or verification with any Secured Party (it being understood that any such information shall be deemed to be “Information” subject to the provisions of Section 9.12 of the Amended and Restated Credit Agreement).

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 6.02 of the Amended and Restated Credit Agreement (or after the occurrence and during the continuation of an Event of Default, whether or not permitted pursuant to Section 6.02 of the Amended and Restated Credit Agreement), and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so as required by the Amended and Restated Credit Agreement or this Agreemen t, 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 Loan Documents.

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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(s), such assignment(s) 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 shall grant any other Lien in respect of the Collateral, except as expressly permitted by Sections 6.02 and 6.05 of the Amended and Restated Credit Agreement, 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 Amended a nd Restated Credit Agreement or any other Loan 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 5.07 of the Amended and Restated Credit Agreement. 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-infact) for the purpose, (i) during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Collateral under policies of insurance, and for making all determinations and decisions with respect thereto and (ii) during the continuance of a Triggering

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Event endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance. 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 Gra ntors 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 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

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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 cancellatio n 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, unless such Grantor 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 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.

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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 the Grantors shall take such 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 a ny cash and Security Entitlements in trust for the benefit of the Collateral Agent and (i) within two (2) Business Days of actual receipt thereof, deposit any and all cash received by it in accordance with Section 5.14 of the Amended and Restated Credit Agreement and (ii) within two (2) Business Days of actual receipt thereof, deposit any and all Securities 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 4.15(a) shall not apply to any financial assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Grantor shall grant Control over any Investment Property that constitutes Collateral to any person other than 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 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.

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(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 3.09 hereto, upon and during the continuance of a Triggering Event, 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 co ntrol 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 a Triggering Event, 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 Amended and Restated Credit Agreement.

SECTION 4.17 Joinder of Additional Grantors. Upon the formation or acquisition of any new direct or indirect domestic Subsidiary by any Grantor, then the Grantors shall, at the Grantors’ expense, cause such Subsidiary to execute and deliver to the Collateral Agent a Joinder Agreement substantially in the form of Annex 2 hereto and to comply with the requirements of Section 5.12 of the Amended and Restated Credit Agreement, 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 Joinder Agreement shall not require the consent of any Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effec t notwithstanding the addition of any new Grantor as a party to this Agreement.

ARTICLE V

Collections

SECTION 5.01              Accounts. (a) From and after the Effective Date, each Grantor agrees to deposit all Daily Receipts into the DDAs on a daily basis.

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(b)             From and after the Effective Date, the Grantors agree to transfer, or cause to be transferred, all Cash Receipts 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.

(c)             Except upon the occurrence and during the continuance of a Triggering Event, 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 and each such Blocked Account Bank shall immediately apply such funds as directed by the Company for use by the Company, subject to Section 5.11 of the Amended and Restated Credit Agreement.

(d)           Upon the occurrence and during the continuance of a Triggering Event, each Blocked Account will, without any further action taken on the part of any Grantor or the Collateral Agent, automatically convert into a closed account under the exclusive dominion and control of the Collateral Agent in which funds are held subject to the rights of the Collateral Agent hereunder and under the Amended and Restated Credit Agreement. During the continuance of a Triggering Event, 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.

(e)           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.

(0 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 (or after the occurrence of a Triggering Event, the Collateral Agent’s Account) as soon as practicable after such Grantor’s receipt thereof.

(g) All payments by any Grantor into any Blocked Account or the Collateral 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 Collateral 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.

SECTION 5.02              Collections.

(a) Each Grantor shall at all times comply with the provisions of Section 5.14 of the Amended and Restated Credit Agreement including, without limitation, upon the occurrence and during the continuance of a Triggering Event, causing the transfer on each Business Day of all Cash Receipts into the Collateral Agent’s Account as provided for in the Amended and Restated Credit Agreement.

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(b)             Without the prior written consent of the Collateral Agent, no Grantor shall modify or amend the instructions pursuant to any DDA Notification, Insurance Provider Notification, Credit Card Notification, Blocked Account Agreement or the Coinstar Notification. 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 a Triggering Event, the Collateral 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 a Triggering Event, the Collateral Agent’s Account).

(c)             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 Collateral 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.

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, (a) 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, (b) upon the occurrence and during the continuance of an Event of Default or as otherwise permitted under the Amended and Restated Credit Agreement, (i) to take actions required to be taken by the Grantors under Section 5.01 of this Agreement; (ii) 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; (iii) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (iv) 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; (v) to sign the name of any Grantor on any notice to the Grantor’s Account Debtors (including licensees under any license agreements); (vi) to sign the name of any Grantor on any proof of claim in bankruptcy against Account Debtors (including licensees under any license agreements); (vii) 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; (viii) 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 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; (ix) to send verifications of Receivables to any Account Debtor; (x) 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

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of the Collateral or to enforce any rights in respect of any Collateral; (xi) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (xii) 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; (xiii) to use, license or transfer any or all General Intangibles of any Grantor; and (xiv) 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 (c) upon the occurrence of a Triggering Event, to notify or to require any Grantor to notify Account Debtors to make payment directly to the Collateral Agent; 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. < font size="2" style="font-size:10.0pt;font-weight:bold;">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 Loan 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 Loan 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.

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(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 detelinine; (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 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 itsel f, 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 (a) 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 no t with a view to the distribution or resale thereof, (b) 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, (c) 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 (d) 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

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(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 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 connect ion 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 public 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 9613 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 apply the proceeds from such resale in accordance with the terms of Section 6.02 of this Agreement.

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 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. 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 7.03 of the Amended and Restated Credit Agreement. The

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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) (a) 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 (b)&nb sp;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.

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 9.01 of the Amended and Restated Credit Agreement. All communications and notices hereunder to any subsidiary listed in Schedule I or II shall be given to it at its address or telecopy number set forth on Schedule I or II, with a copy to Company.

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 (a) any lack of validity or enforceability of the Amended and Restated Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) 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 Amended and Restated Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or

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amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, (d) 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 (e) 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 Secured Parties and shall survive the making by the Lenders of the Loans, and the execution and delivery to the Lenders of any notes evidencing such Loans, regardless of any investigation made by the Lenders 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 Amended and Restated Credit Agreement. 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 Loan Documents, each Grantor jointly and severally agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable 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 for any monitoring or audits conducted by it or on its behalf with respect to the Receivables or Inventory), (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 r ights of the Collateral Agent hereunder or (iv) the failure of any Grantor to perform or

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observe any of the provisions hereof.

(b)             Without limitation of its indemnification obligations under the other Loan Documents, each Grantor jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees 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 Security 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 Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any Lender. 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 Issuing Bank, the Administrative Agent and the Lenders under the other Loan 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 Loan 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

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modification is to apply, subject to any consent required in accordance with Section 9.02 of the Amended and Restated Credit Agreement.

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 LOAN 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 AGREEMEN T 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 Loan 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 sha ll be conclusive and may be enforced in other jurisdictions by suit on the

107

judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan 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 Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby 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. This Agreement and the Security Interest shall terminate when all the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations hereunder, survive the termination of this Agreement, the other Loan Documents or the Hedging Agreements described in clause (d) of the definition of Obligations hereunder), the Lenders have no further commitment to lend, the IJC Exposure and any Obligations in respect of bank Products or Cash Management Services have been reduced to zero or collateralized to the satisfaction of the Administrative Agent and/or the Issuing Bank has no further commitment to issue Letters of Credit under the Amended and Restated Credit Agreement, at which time the Collateral Agent shall deliver to the Grantors written authority to terminate, at the Grantors’ 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 Guarantor shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Subsidiary Guarantor shall be automatically released in the event that all the capital stock of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of any Borrower (i) in accordance with the terms of Section 6.05 of the Amended and Restated Credit Agreement or (ii) if the Required Lenders shall have consent ed to such sale, transfer or other disposition (to the extent required by the Amended and Restated Credit Agreement) and the terms of such consent did not provide otherwise. Upon any sale or other transfer by any Grantor of any Collateral that is permitted under the Amended and Restated Credit Agreement to any person that is not a Grantor, or, upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 9.02(b) of the Amended and Restated Credit Agreement, the security interest in such Collateral shall be automatically released.

[signature page follows]

108

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:
	Name:
	Title:
EACH OF THE OTHER LOAN PARTIES LISTED ON SCHEDULE I AND SCHEDULE II HERETO
By:
	Name:
	Title:

Signature Page to Security Agreement

BANK OF AMERICA, N.A., as Collateral Agent
By:
	Name:	Stephen L. DeMenna
	Title:	Managing Director

Signature Page to Security Agreement

SCHEDULE I

Borrowers

SCHEDULE II

Guarantors

SCHEDULE III

Copyrights

SCHEDULE IV

Licenses

SCHEDULE V

Patents

SCHEDULE VI

Trademarks

SCHEDULE VII

Commercial Tort Claims

SCHEDULE 3.06

Claims to which any Grantor is a Party

SCHEDULE 3.07

Instruments and Chattel Paper

SCHEDULE 3.09

Electronic Chattel Paper and Transferable Records

Annex 1 to the Security Agreement

[PERFECTION CERTIFICATE]

Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among The Great Atlantic & Pacific Tea Company, Inc. (the “Company”), the other borrowers party thereto (such borrowers, together with the Company, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not defined herein have the meanings assigned in the Amended and Restated Credit Agreement or the Security Agreement referred to therein, as applicable.

The undersigned hereby certifies to the Collateral Agent and each other Secured Party

that:

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(a) 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(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a).

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 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(a) attached hereto or otherwise disclosed in Section 1, all Accounts Receivable have been originated by the Grantors, 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 Uniform Commercial Code filing office identified with respect to such Grantor in Section 2 hereof, and such search reports reflect no liens against any of the Collateral other than those permitted under the Amended and Restated Credit Agreement and liens that will be terminated on the Restatement Effective Date.

5.UCC Filings. Financing statements on Form UCC-1 and Form UCC-3 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 2 hereof.

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 inv estment 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 principal amount of $1,000,000 or more held by any Grantor, including all intercompany 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, applicati on 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 Gran tor. (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 $500,000 held by any Grantor, including a brief description thereof.

[signature page follows]

IN WITNESS WHEREOF, the undersigned has duly executed this certificate on this day of       , 20   .

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

B y:

Name:

Title:

Annex 2 to the Security Agreement

SUPPLEMENT NO. — dated as of [ ], to the Security Agreement dated as of December 3, 2007, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the “Company”), a Maryland corporation, each subsidiary of the Company listed on Schedule I thereto (each such subsidiary individually a “Borrower” and collectively with the Company, the “Borrowers”), each subsidiary of the Company listed on Schedule II thereto (each such subsidiary individually a “Guarantor” and collectively, the “Guarantors”; the Borrowers, the Guarantors are also referred to collectively herein as the “Grantors”), and BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined herein).

A.Reference is made to (a) the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among the Company, the other Borrowers party thereto, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and Collateral, and (b) the Guaranty dated as of Dece mber 3, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), among the Loan Parties and the Collateral Agent.

B.Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement and the Amended and Restated Credit Agreement.

C. The Grantors have entered into the Security Agreement in order to induce the Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12 of the Amended and Restated Credit Agreement, each domestic Subsidiary of the Company that is a Loan Party that was not in existence or not a Subsidiary on the date of the Amended and Restated Credit Agreement is required to enter into the Security Agreement as a Grantor upon becoming a Subsidiary. Section 4.16 of the Security Agreement provides that such Subsidiaries may become Grantors under the Security Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is executing this Supplemen t in accordance with the requirements of the Amended and Restated Credit Agreement to become a Grantor under the Security Agreement in order to induce the Lenders to make additional Loans and the Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.

Accordingly, the Collateral Agent and the New Grantor agree as follows:

SECTION 1. In accordance with Section 4.16 of the Security Agreement, the New Grantor by its signature below becomes a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of the Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing, the New Grantor, as security for the payment and performance in full of the

Obligations (as defined in the Security Agreement), does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Grantor’s right, title and interest in and to the Collateral (as defined in the Security Agreement) of the New Grantor. Each reference to a “Grantor” in the Security Agreement shall be deemed to include the New Grantor. The Security Agreement is hereby incorporated herein by reference.

SECTION 2. The New Grantor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.

SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Grantor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Supplement.

SECTION 4. The New Grantor hereby represents and warrants that (a) set forth on Schedule III attached hereto is a true and correct schedule of the location of any and all Collateral consisting of Equipment and Inventory of the New Grantor and (b) set forth under its signature hereto, is the true and correct location of the chief executive office of the New Grantor and its jurisdiction of formation.

SECTION 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.

SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Security Agreement 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 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.

SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Security Agreement. All communications and notices hereunder to the New Grantor shall be given to it at the address set forth under its signature below.

SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.

IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly executed this Supplement to the Security Agreement as of the day and year first above written.

[Name of New Grantor]

By

Name:

Title:

Address:

BANK OF AMERICA, N.A., as Collateral Agent

By

Name:

Title:

SCHEDULE I

Borrowers

SCHEDULE II

Guarantors

SCHEDULE III

to Supplement No.to the
Security Agreement

LOCATION OF COLLATERAL

Description Location

Exhibit H - Form of Additional Commitment Lender Joinder Agreement

ADDITIONAL COMMITMENT LENDER JOINDER
TO AMENDED AND RESTATED CREDIT AGREEMENT

This Joinder to Amended and Restated Credit Agreement (this “Joinder”) is made as of this              day of                                 by                                                 (the “Additional Commitment Lender”), with its principal executive offices at

              in consideration of the mutual covenants herein contained and benefits to be derived herefrom.

WITNESSETH:

A.Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), and the other borrowers party thereto (each a “Borrower” and, collectively with the Company, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), and Bank of America, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) and Collateral Agent. Capitalized teens used herein but not defined herein shall have the meanings as set forth in the Amended and Restated Credit Agreement.

B.Pursuant to, and in accordance with, the terms and provisions of Section 2.02(a) of the Amended and Restated Credit Agreement, the Company has requested an increase in the aggregate outstanding Tranche A Commitments. The Additional Commitment Lender has agreed to provide all or a portion of the requested Commitment Increase.

C. Pursuant to the terms and provisions of Section 2.02(b)(i) of the Amended and Restated Credit Agreement, each Additional Commitment Lender is required to join in, and become a party to, the Amended and Restated Credit Agreement.

NOW, THEREFORE, in consideration of the premises, the parties hereto hereby agree as follows:

1. Joinder to Amended and Restated Credit Agreement. Effective as of the date of this Joinder, the Additional Commitment Lender hereby acknowledges that it has received and reviewed a copy of the Amended and Restated Credit Agreement, and acknowledges and agrees to:

a.join in the execution of, and become a party to, the Amended and Restated Credit Agreement as a Tranche A Lender, as indicated with its signature below; and

b.(i) be bound by, and comply with, all such restrictions, agreements, and terms set forth in Section 9.04(b) of the Amended and Restated Credit Agreement, which relate to the assignment of interests by a Lender; (ii) from and after the date of this Joinder, be a party to and be bound by the provisions of the Amended and Restated Credit Agreement as if such Additional Commitment Lender was a signatory to the Amended and Restated Credit Agreement and was expressly named as a Lender therein, and, (iii) to the extent of the Commitment assigned to the Additional Commitment Lender, have the rights and obligations of a Lender under the Amended and Restated Credit Agreement.

2.Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the conditions precedent under Section 2.02(b) of the Amended and Restated Credit Agreement have been fulfilled to the satisfaction of the Administrative Agent.

3.Miscellaneous.

a.This Joinder may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument.

b.This Joinder expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.

c.Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not effect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder.

d.Without limiting the requirements of Section 2.02(b) of the Amended and Restated Credit Agreement, the Borrowers shall pay all out-of-pocket costs and expenses of the Administrative Agent, including, without limitation, reasonable attorneys’ fees in connection with the preparation, negotiation, execution and delivery of this Joinder.

e.The Additional Commitment Lender warrants and represents that Additional Commitment Lender has consulted with independent legal counsel of its selection in connection with this Joinder and is not relying on any representations or warranties of the Administrative Agent, the Lenders, or their respective counsel in entering into this Joinder.

4.THIS JOINDER 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).

[Signature Pages to Follow]

2

The undersigned hereby signs, executes, and delivers this Joinder Agreement as per Section 2.02(b)(i) of the Amended and Restated Credit Agreement.

[Additional Commitment Lender]

By:

Name:

Title:

Acknowledged, and to the to the extent required under the terms Section 2.02(a) of the Amended and Restated Credit Agreement, consented to by:

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., as the Company, on behalf of itself and the other Borrowers

B y:

Name:

Title:

Acknowledged, and to the to the extent required under the terms Section 2.02(a) of the Amended and Restated Credit Agreement, consented to by:

BANK OF AMERICA, N.A., as Administrative Agent and Issuing Bank

B y:

Name:

Title:

Exhibit I: Form of Opinion of Cahill Gordon & Reindel LLP

(see attached)

CAHILL GORDON 8C REINDEL LLP
EIGHTY PINE STREET
NEW YORK, N.Y. 10005-1702

FLOYD ABRAMS	CHARLES A. GILMAN	TELEPHONE: (212) 701-3000	MICHAEL J. OH LER	GLENN J. WALDRIP, JR.
L. HOWARD ADAMS	STEPHEN A. GREENE	FACSIMILE: (212) 269-5420	KENNETH W. ORCE	MICHAEL B. WEISS
ROBERT A. ALESSI	ROBERT M. HALLMAN	_________________________________	DAVID R. OWEN	S. PENNY WINDLE
ROGER ANDRUS	WILLIAM M. HARTNETT		JOHN PAPACHRISTOS	COREY WRIGHT
HELENE R. BANKS	CRAIG M. HOROWITZ	1990 K STREET, N.W.	LUIS R. PENALVER	DANIEL J. ZUBKOFF
MICHAEL A. BECKER	DOUGLAS S. HOROWITZ	WASHINGTON, D.C. 20006-118 I	ROY L. REGOZIN	ADAM ZUROFSKY
LANDIS C. BEST	DAVID G. JAN USZEWSKI	(202) 862-8900	DEAN RINGEL	_______________________
GARY A. BROOKS	E LAI KATZ	FAX: (202) 862-8958	JAMES ROBINSON
SUSAN BUCKLEY	THOMAS J. KAVALER		THORN ROSENTHAL	SENIOR COUNSEL
KEVIN J. BURKE	DAVID N. KELLEY		JONATHAN A. SCHAFFZIN
JAMES J. CLARK	EDWARD P. KRUGMAN	AUGUSTINE HOUSE	JOHN SCHUSTER	LAWRENCE A. KOBRIN
BENJAMIN J. COHEN	JOEL KURTZBERG	6A AUSTIN FRIARS	MICHAEL A. SHERMAN	IMMANUEL KOHN
CHRISTOPHER T. COX	ALIZA R. LEVINE	LONDON, ENGLAND EC2N 2HA	DARREN SILVER	DONALD J. MULVIHILL
W. LESLIE DUFFY	GEOFFREY E. LIESMANN	(01 I) 44.20.7920.9800	HOWARD G. SLOANE
ADAM M. DWORKIN	MICHAEL MACRIS	FAX: (011) 44.20.7920.9825	LAURENCE T. SORKIN	COUNSEL
RICHARD E. FARLEY	ANN S. MAKICH	_________________________________	LEONARD A. SPIVAK
PATRICIA FARREN	JONATHAN I. MARK		SUSANNA M. SUH	JAY GEIGER
JOAN MURTAGH FRANKEL	GERARD M. MEISTRELL	WRITER’S DIRECT NUMBER	GERALD S. TANENBAUM	RAND McOUINN*
JONATHAN J. FRANKEL	MICHAEL E. MICHETTI		JONATHAN D. THIER	_______________________
BART FRIEDMAN	WILLIAM J. MILLER		JOHN A. TRIPODORO
CIRO A. GAMBONI	ATHY A. MOBILIA		ROBERT USAD I	ADMITTED IN
WILLIAM B. GANNETT	NOAH B. NEWITZ		GEORGE WAILAND	DC, TX, VA ONLY
			December 27, 2007

BANK OF AMERICA, NA.,

as Administrative Agent and Collateral Agent

under the Credit Agreement referred to below

100 Federal Street

Boston, Massachusetts 02110

Each of the Lenders listed on Schedule I hereto

Re: The Great Atlantic & Pacific Tea Company. Inc.

Ladies and Gentlemen:

We have acted as special counsel to The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”) and the Subsidiaries of the Company listed on Schedule II hereto (together with the Company, the “Loan Parties”) in connection with the execution and delivery by the foregoing of that certain Amended & Restated Credit Agreement, dated as of the date hereof (the “Credit Agreement”), among the Company, the other Borrowers party thereto, Bank of America, N.A., as Administrative Agent and Collateral Agent (in such capacities, the “Agent”), the Lenders and Banc of America Securities LLC, as Lead Arranger (the “Lead Arranger”).

This opinion is furnished to you at the request of the Company pursuant to Section 4.01(b) of the Credit Agreement. Unless otherwise defined herein, (i) capitalized Willis used herein and defined in the Credit Agreement shall have the meanings ascribed to them in the Credit Agreement but shall only refer to any agreement, document or instrument as in effect on the date

hereof and (ii) capitalized terms used herein and defined in the Original Closing Opinion (defined below) shall have the meanings assigned to such terms in the Original Closing Opinion.

In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed necessary for the purposes of this opinion. We have examined, among other documents, the following:

1.the Credit Agreement;

2.the Confirmation and Ratification among the Loan Parties and the Agent; and

3.the Mortgages entered into by the Loan Parties listed on Schedule IV hereto (the “Opinion Mortgages”).

The documents referred to in items 1 and 2 above are referred to herein collectively as the “Credit Documents.” For purposes of this opinion, “Original Closing Opinion” means our opinion dated December 3, 2007; and “Original Closing Date” means December 3, 2007.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and officers of the Company and the other Loan Parties and other instruments as we have deemed necessary or appropriate to enable us to render this opinion. As to questions of fact relating to the Company and the other Loan Parties material to this opinion, we have relied upon certificates of public officials and statements, representations and certificates of the Company and the other Loan Parties and their respective officers and other representatives (including, without limitation, the representations of Company and the other Loan Parties contained in the Credit Documents) without independent investigation into the matters covered thereby.

In rendering this opinion to you, we have assumed without inquiry:

(a)(i) the genuineness of all signatures on original copies of the Credit Documents and Opinion Mortgages, (ii) the legal capacity of all natural persons executing documents, (iii) the conformity to the original documents of all documents submitted to us as copies and the authenticity of all documents submitted to us as originals, (iv) the due authorization, execution and delivery of the Credit Documents and Opinion Mortgages by each of the parties thereto (other than the Delaware and New York Loan Parties), (v) that the partie s to the Credit Documents have not entered into any agreements of which we are unaware which modify the terms of the Credit Documents and have not otherwise expressly or by implication waived, or agreed to any modification of the Credit Documents, (v) the validity and enforceability of the Credit Documents against each of the parties thereto, other than the Loan Parties and (vi) that the execution, delivery and performance of the Credit Documents by each of the parties thereto does not breach, conflict with or

constitute a violation of or default under (a) any law, (b) any agreement, interest or document to which any such party is a party or by which any such party or any of its properties is bound, (c) any order, judgment or decree to which any such party is bound or subject or by which any of its properties is bound or (d) the organizational documents of such party (other than the Delaware and New York Loan Parties);

(b)that each Loan Party and each other party to the Credit Documents (i) is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, as applicable and (ii) has the requisite power and authority to conduct its business as now conducted, to own, lease and convey its properties and assets and other than to the extent set forth in opinion paragraph 1 below, to execute, deliver and perform its obligations under each Credit Document and Opinion Mortgage to which it is a pa rty; and

(c)that any consideration contemplated to be given by any party in any of the Credit Documents was given at the time of execution and delivery of the Credit Documents.

“Applicable Laws” means those laws, rules and regulations of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America which, in our experience, are normally applicable to transactions of the type contemplated by the Credit Documents (other than the securities registration provisions and antifraud provisions of the United States federal securities laws, state securities or blue sky laws, and the rules and regulations of the National Association of Securities Dealers, Inc.), without our having made any special investigation as to the applicability of any specific law, rule or regulation.

Based upon the foregoing assumptions and subject to the limitations, qualifications and exceptions hereinafter set forth, we are of the opinion that:

1.Each Loan Party incorporated or organized under the laws of Delaware or New York listed on Schedule III hereto (collectively, the “Delaware and New York Loan Parties”) has duly authorized, executed and delivered each Credit Document and each Opinion Mortgage to which it is a party.

2.Each Credit Document constitutes the legal, valid and binding obligations of each Loan Party to the extent it is a party thereto, enforceable against each of them in accordance with their respective terms.

3.The use of counterpart copies of any of the Credit Documents does not affect the enforceability of any of the Credit Documents.

4.Subject to the assumptions and qualifications set forth above and below, (a) the Pledge Agreement will, upon execution and delivery of the Credit Agreement by the

Cornpany and the other Borrowers and the making of the loans thereunder on the date hereof, continue to create a valid security interest in favor of the Agent in the Pledged Shares (as such tern is defined in the Original Closing Opinion) to the same extent as the Pledge Agreement was effective to create such a security interest prior to the effectiveness of the Credit Agreement (as to which matters, as of the Original Closing Date, we refer you to the Original Closing Opinion), subject to the assumptions, qualifications, exclusions and limitations stated therein), (b) the Security Agreement will, upon execution and delivery of the Credit Agreement by the Company and the other Borrowers and the making of the loans thereunder on the date hereof, continue to create a valid security interest in favor of the Agent in the Article 9 Collateral (as such term is defined in the Origin al Closing Opinion) to the same extent as the Security Agreement was effective to create such a security interest prior to the effectiveness of the Credit Agreement (as to which matters, as of the Original Closing Date, we refer you to the Original Closing Opinion), subject to the assumptions, qualifications, exclusions and limitations stated therein), and (c) such security interest in certain Article 9 Collateral referenced in our Original Closing Opinion is perfected by the Delaware Financing Statements or New York Financing Statements, as applicable, (subject to the assumptions, qualifications, exclusions and limitations stated in the Original Closing Opinion) and no additional UCC-1 financing statements are required to be filed on the date hereof pursuant to the NY UCC or Delaware UCC to perfect such security interest.

5. Assuming that the certificates representing the Pledged Shares (other than Pledged Shares of East Brunswick Stuart LLC, Lancaster Pike Stuart, LLC, MacDade Boulevard Stuart LLC, Milik Service Company, LLC, Plainbridge LLC and Upper Darby Stuart, LLC) have been delivered to the Agent in the State of New York with appropriate instruments of transfer duly endorsed in blank by an effective endorsement, and assuming the continued possession and control by the Agent of such Pledged Shares in the State of New York, the security interest in such Pledged Shares in favor of the Agent will be perfected under the NY UCC. Assuming that neither the Agent nor any Lender has notice of any adverse claim (as defined in Section 8-105 of the NY UCC) with respect to the Pledged Shares, upon becoming perfected in the foregoing manner the Agent’s security interest in the Pledge d Shares will be free of any adverse claim (as defined in Section 8-102 of the NY UCC).

Our opinions set forth above are subject to the following qualifications:

A.The enforceability of the Credit Documents may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer acts, moratorium or other laws affecting creditor’s rights generally, (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law), including, without limitation, principles that (a) include a requirement that a creditor act with reasonableness and in good faith and deal fairly with its debtors, (b) limit a creditor’s right to accel erate maturity of a debt upon the occurrence of a default deemed immaterial, or (c) might render certain waivers unenforceable, and we wish to advise you that the remedy of specific performance or injunctive relief (whether considered in a

proceeding in equity or at law) is subject to the exercise of judicial discretion, (iii) public policy considerations and (iv) federal and state securities laws or the public policies underlying such laws.

B.Certain provisions of the Credit Documents may be unenforceable in whole or in part under the laws of the State of New York, but the inclusion of such provisions does not affect the validity of the Credit Documents, taken as a whole, and the Credit Documents contain adequate provisions for the practical realization of the rights and benefits intended to be provided thereby. Without limiting the foregoing, New York courts or federal courts applying New York law may deny or limit the enforceability of clauses or provisions that purport to (i) give the right of specific performance and injunctive and other forms of equitable relief, (ii) limit the jurisdiction of any courts or establish any exclusive venue or evidentiary standards or any waiver of trial by jury, (iii) provide for indemnification or contribution, (iv) give a secured party cumulative or duplicative remedies, to the extent such cumulative or duplicative remedies purport to or would have the effect of compensating such secured party in amounts in excess of the actual loss suffered by such secured party, or (v) provide for the choice of law governing the Credit Documents.

C.We express no opinion as to the right of the Agent to collect any payment to the extent that such payment constitutes a penalty, forfeiture or late charge.

D.We have assumed that (i) the Collateral (as such term is defined in the Security Agreement) and Pledged Shares (other than property which becomes Collateral after the date hereof) exists and the Company or the applicable Guarantor has “rights” in such Collateral and Pledged Shares as contemplated by the NY UCC, (ii) the Company and each Guarantor has received “value” (as defined in the NY UCC), (iii) the descriptions of collateral in the Collateral Documents, New York Financing Statements and the Delaware Fi nancing Statements reasonably describe the property intended to be described as collateral, (iv) all information regarding the secured party on the New York Financing Statements and Delaware Financing Statements is accurate and complete in all respects, and (v) the representations in the Credit Documents, including, without limitation, the information on any of the exhibits and schedules thereto, regarding the jurisdiction of incorporation of the Company and Guarantors are accurate and complete as of the date of the filing of the New York Financing Statements and Delaware Financing Statements. We have made no examination of, and no opinion is given herein as to, any parties’ respective title to, or other ownership rights in, or the existence of any liens, charges or encumbrances on, or adverse claims against, the Collateral or Pledged Shares, other than the security interests in favor of the Agent as contemplated by the Security Agreement and the Pledge Agreement.

E.Our opinions are subject to the provisions of Section 9-203 of the NY UCC relating to the time of attachment. We have assumed that no agreement exists that postpones attachment or conveyance of or modifies, releases or terminates, the interests of the Agent in the Collateral or Pledged Shares or that would expand, modify or otherwise affect the respective rights and obligations of the parties to the Security Agreement and the Pledge Agreement.

F.Except as expressly provided in paragraphs 4 and 5 above, we express no opinion as to the validity, creation, attachment or perfection of any security interest purported to be created in any Collateral or Pledged Shares. Except as expressly provided in paragraph 5 above, we express no opinion as to the priority of any security interest purported to be created in any Collateral or Pledged Shares.

G.We express no opinion with respect to the validity, attachment, creation or perfection of any security interest in any Collateral that is not governed by, or that is excluded from coverage by, Articles 8 and 9 of the NY UCC and corresponding provisions of the Delaware UCC (including, without limitation, as expressly excluded from applicability of the NY UCC pursuant to Section 9-109 thereof).

H.Any security interest in any collateral or proceeds of any collateral is limited to the extent set forth in Section 9-315 of the NY UCC and corresponding provisions of the Delaware UCC.

I.With respect to our opinion in paragraph 5 above, (i) in the case of the issuance of additional shares or other distributions in respect of the Pledged Shares, the security interests of the Agent therein will be perfected only if certificates representing such additional shares or other distributions are delivered to the Agent in the State of New York and the Agent holds and continues to hold such certificates in the State of New York, together with undated stock powers with respect thereto duly endorsed in blank by an effective endorsement and (ii) we express no opinion to the extent the Pledged Shares are not represented by certificates or do not constitute “certificated securities” subject to Article 8 of the NY UCC.

J.We express no opinion as to the applicability of Section 548 of the Federal Bankruptcy Code or of any provisions of any state fraudulent conveyance statute or law to the transactions contemplated by the Credit Documents. We call to your attention the fact that the perfection of the security interests in any collateral may be limited by Section 552 of the Federal Bankruptcy Code, which limits the extent to which property acquired by a debtor after the commencement of a case under the Federal Bankruptcy Code ma y be subject to a security interest arising from a security agreement entered into by the debtor before the commencement of such case.

K.We express no opinion as to the validity, binding effect or enforceability of any provision of the Credit Documents that purports to waive, release or vary any right of, or any duties owing to, a party to the extent limited by Sections 1-102(3), 9-601, 9-602 or 9-603 of the NY UCC or other provisions of applicable law.

L.We call to your attention that Section 9-108(c) of the NY UCC provides that supergeneric descriptions are insufficient to create a valid security interest and that Section 9108(e)(1) of the NY UCC provides that a description of commercial tort claims by type only is insufficient to create a valid security interest.

M.We express no opinion with respect to any collateral which constitutes goods which are an accession to, or commingled or processed with other goods to the extent that the security interest of the Agent is limited by Section 9-335 or 9-336 of the NY UCC and corresponding provisions of the Delaware UCC.

N.We call to your attention that the perfection and the effect of perfection and non-perfection of the security interests in favor of the Agent for the benefit of the Secured Parties in the Collateral may be governed by laws other than the NY UCC and the Delaware UCC.

0.We express no opinion with respect to any collateral of the type referred to in Section 9-501(a)(1) of NY UCC or the Delaware UCC and any items of collateral which are subject to a statute, regulation or treaty of the United States of America which provides for a national or international certificate of title for the perfection of a security interest therein or which specifies a place of filing different from the place specified in the NY UCC or the Delaware UCC for filing to perfect such security inter est.

P.We express no opinion with respect to any collateral consisting of claims against any government or governmental agency (including, without limitation, the United States of America or any state thereof or any agency or department of the United States of America or any state thereof).

Q.In the case of any chattel paper, account or general intangible which is itself secured by other property, we express no opinion with respect to the Company’s or any Guarantor’s rights in and to such underlying collateral.

R.The enforceability by the Agent or other secured parties of collateral consisting of rights under contracts may be subject to the terms of those contracts or other contracts between the Company or a Guarantor and other parties thereto and claims or defenses of such other parties against the Company or a Guarantor.

S.We call to your attention that (i) the perfection of the security interest in any Collateral described in the Delaware Financing Statements or New York Financing Statements may be terminated as to any Collateral acquired subsequent to a change in the name or corporate structure of any Loan Party and may otherwise be affected by the matters set forth in Sections 9316, 9-507 and 9-508 of the NY UCC and corresponding provisions of the Delaware UCC and (ii) the NY UCC and the Delaware UCC require the filing of continuation s tatements within the period of six months prior to the expiration of five years from the date of the original filing of the Delaware Financing Statements and the New York Financing Statements.

T.We express no opinion as to the legality, validity, binding nature or enforceability of any provision of the Credit Documents (i) providing for the payment or reimbursement of costs or expenses or indemnifying a party, to the extent such provisions may be excessive in amount or held to be unenforceable as contrary to public policy, (ii) regarding any party’s

ability to collect attorneys’ fees and costs in an action involving the Credit Documents if such party is not the prevailing party in such action or (iii) to the effect that a statement, certificate, determination or record shall be deemed conclusive absent manifest error (or similar effect), including, without limitation, that any such statement, certificate, determination or record shall be prima facie or conclusive evidence of any fact.

U.We express no opinion as to any provision of the Credit Documents requiring written amendments or waivers of such documents insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not apply.

V.We express no opinion with respect to the legality, validity, binding nature or enforceability of any provision of the Credit Documents to the effect that rights or remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to any other right or remedy, that the election of some particular remedy or remedies does not preclude recourse to one or more other remedies or that failure to exercise or delay in exercising rights or remedies will not operate as a waiver of any such right or remedy.

W.We express no opinion as to the enforceability or legal effect of any provision of the Credit Documents purporting to reinstate obligations or liabilities of any person that have been avoided or that have arisen from transactions that have been rescinded or the payment of which has been required to be returned by any court of competent jurisdiction.

X.We do not express any opinion as to: (i) any provision of the Credit Documents that relates to forum selection (including, without limitation, any waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum) or that purports to cause any party to waive rights to jury trial; (ii) any right of set-off or similar rights arising or purporting to arise under the Credit Documents; or (iii) any provision of the Credit Documents that purports to cause any party to waive any right, remedy or d efense provided by constitution or statute, now or hereafter enacted, or that waives objection to jurisdiction or the manner of service of process, imposes indemnity liability on any person for the acts or omissions of another person, appoints any person as attorney-in-fact for another, or waives the right to assert lack of consideration.

Y.We point out to you that we do not express any opinion as to whether the execution, delivery or performance by the Loan Parties of each of the Credit Documents will constitute a violation of or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of the Loan Parties or otherwise requiring any financial calculation in order to determine compliance therewith.

Z.We have acted as counsel for the Company from time to time and our employment has been limited to specific matters referred to us, and there may exist legal matters with

respect to which we are aware but have not been retained as legal counsel and we disclaim any obligation with respect to such matters.

The foregoing opinions are limited to matters involving the Federal laws of the United States and the laws of the State of New York, and, subject to the next sentence, we do not express any opinion with respect to the laws of any other state or jurisdiction. Our opinion expressed in paragraph 4 above is based solely upon our review of Article 9 of the Delaware UCC as set forth in the CCH Secured Transactions Guide as updated through November 13, 2007 (and not any judicial interpretations thereof).

We are attorneys admitted to practice in the State of New York and not express any opinion as to the law of any jurisdiction other than the Applicable Laws.

This opinion is rendered solely to, and is intended solely for the benefit of, (i) the Agent and its direct successors and (ii) the Lenders under the Credit Agreement and their successors and permitted assigns who we have been advised in writing have become Lenders during the primary syndication of the facilities under the Credit Agreement (and in any event, on or prior to January 2, 2008), in each case, in connection with the transactions contemplated in the Credit Documents. This opinion may not be relied upon by any other person, firm or corporation for any purpose without our prior written consent.

This opinion speaks only as of its date, and we do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which we did not have actual knowledge at the time, by reason of any change subsequent to that time in any law, other governmental requirement or interpretation thereof covered by any of our opinions or advice, or for any other reason.

Very truly yours,

Schedule I

Lenders

Bank of America, N.A.

The CIT Group/Business Credit, Inc.

General Electric Capital Corporation

Wells Fargo Retail Finance

Burdale Financial Limited

National City Business Credit, Inc.

Textron Financial Corporation

JPMorgan Chase Bank, N.A.

Wachovia Bank, National Association

Schedule II

Subsidiaries

APW SUPERMARKETS, INC.

COMPASS FOODS, INC.

FOOD BASICS, INC.

HOPELAWN PROPERTY I, INC.

MCLEAN AVENUE PLAZA CORP.

SHOPWELL, INC.

SUPER FRESH FOOD MARKETS, INC.

LO-LO DISCOUNT STORES, INC.

SUPER FRESH/SAV-A-CENTER, INC.

SUPER MARKET SERVICE CORP.

SUPER PLUS FOOD WAREHOUSE, INC.

TRADEWELL FOODS OF CONN., INC.

WALDBAUM, INC.

ANP PROPERTIES I CORP.

BIG STAR INC.

FAMILY CENTER, INC.

FUTURESTORE FOOD MARKETS, INC.

LIMITED FOODS, INC.

MONTVALE HOLDINGS, INC.

RICHMOND TWICE, INCORPORATED

SUPER FRESH FOOD MARKETS OF MARYLAND, INC.

SUPER FRESH FOOD MARKETS OF VIRGINIA, INC.

SUPERMARKET DISTRIBUTION SERVICES, INC.

1046 YONKERS AVE. CORP.

111 NORTH AVENUE REALTY CORP.

CLAY-PARK REALTY CO., INC.

DELAWARE COUNTY DAIRIES, INC.

GRAMATAN FOODTOWN CORP.

SHOPWELL, INC. (MA)

SHOPWELL, INC. (NJ)

THE FOOD EMPORIUM, INC. (NY)

THE FOOD EMPORIUM, INC. (DE)

THE FOOD EMPORIUM, INC. (NJ)

THE WINE EMPORIUM, INC.

APW SUPERMARKET CORPORATION

THE MEADOWS PLAZA DEVELOPMENT CORP.

BEV, LTD.

FARMER JACK PHARMACIES, INC.

FARMER JACK’S OF OHIO, INC.

S E G STORES, INC.

KOHL’S FOOD STORES, INC.

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

SPRING LANE PRODUCE CORP.

2

BORMAN’S, INC.

PATHMARK STORES, INC.

AAL REALTY CORP.

MACDADE BOULEVARD STUART, LLC

BERGEN STREET PATHMARK, INC.

BRIDGE STUART INC.

EAST BRUNSWICK STUART LLC

LANCASTER PIKE STUART, LLC

PLAINBRIDGE LLC

UPPER DARBY STUART, LLC

ADBRETT CORP.

MILIK SERVICE COMPANY, LLC

SUPERMARKETS OIL COMPANY, INC.

KWIK SAVE, INC.

2008 BROADWAY, INC.

Schedule III

Delaware and New York Loan Parties

Loan Party	State of Formation
ANP Properties I Corp.	Delaware
Compass Foods, Inc.	Delaware
Family Center, Inc.	Delaware
Food Basics, Inc.	Delaware
Futurestore Food Markets, Inc.	Delaware
Hopelawn Property I, Inc.	Delaware
Limited Foods, Inc.	Delaware
Richmond Twice, Incorporated	Delaware
Super Fresh Food Markets of Virginia, Inc.	Delaware
Super Fresh/Sav-A-Center, Inc.	Delaware
Super Plus Food Warehouse, Inc.	Delaware
Supermarket Distribution Services, Inc.	Delaware
Borman’s, Inc.	Delaware
Bev, Ltd.	Delaware
S E G Stores, Inc.	Delaware
Super Fresh Food Markets, Inc.	Delaware
Shopwell, Inc.	Delaware
The Food Emporium, Inc.	Delaware
APW Supermarket Corporation	Delaware
Pathmark Stores, Inc.	Delaware
Adbrett Corp.	Delaware
East Brunswick Stuart LLC	Delaware
Lancaster Pike Stuart, LLC	Delaware
MacDade Boulevard Stuart, LLC	Delaware
Plainbridge LLC	Delaware
Upper Darby Stuart, LLC	Delaware
The Food Emporium, Inc.	New York
Spring Lane Produce Corp.	New York
The Meadows Plaza Development Corp.	New York
AAL Realty Corp.	New York
Bridge Stuart Inc.	New York
APW Supermarkets, Inc.	New York
2008 Broadway, Inc.	New York
111 North Avenue Realty Corp.	New York
1046 Yonkers Ave. Corp.	New York
Waldbaum, Inc.	New York
McLean Avenue Plaza Corp.	New York
Gramatan Foodtown Corp.	New York
Delaware County Dairies, Inc.	New York

4

Loan Party	State of Formation
Clay-Park Realty Co., Inc.	New York

Schedule IV

Bridge Stuart, Inc., a New York corporation

East Brunswick Stuart LLC, a Delaware limited liability company

Plainbridge LLC, a Delaware limited liability company

MacDade Boulevard Stuart, LLC, a Delaware limited liability company

Lancaster Pike Stuart, LLC, a Delaware limited liability company

Pathmark Stores, Inc., a Delaware corporation

Shopwell, Inc., a Delaware corporation

6

Exhibit K - Form of Credit Card Notification

CREDIT CARD NOTIFICATION

[PREPARE ON APPLICABLE LOAN PARTY’S LETTERHEAD - ONE FOR EACH
PROCESSOR LISTED ON SCHEDULE 5.14(B) OF THE AMENDED AND RESTATED
CREDIT AGREEMENT]

, 20  

To:[Name and Address of Processor] (the “Processor”)

Re:                     (the “Loan Party”)

Dear Sir/Madam:

This letter relates to the credit card processing agreement between the Loan Party and the Processor dated                 (the “Processing Agreement”).

The Loan Party has entered into a financing agreement with Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are making loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (collect ively, the “ABL Agreements”). Pursuant to the ABL Agreements, the Loan Party has granted to the Collateral Agent, for its own benefit and the benefit of the other Credit Parties, a security interest in and to, among other things, substantially all of the assets of the Loan Party, including without limitation, all amounts due or to become due from the Processor to the Loan Party pursuant to the Processing Agreement between the Processor and the Loan Party (the “Credit Card Proceeds”). Such Credit Card Proceeds include all credit card charges submitted by the Loan Party to the Processor for processing and the amounts which the Processor owes to the Loan Party on account thereof and all other amounts due or to become due to the Loan Party under the Processing Agreement.

Under the terms and provisions of the Amended and Restated Credit Agreement, the Loan Party is obligated to deposit or cause to be deposited all Credit Card Proceeds into the deposit accounts specified in the following paragraph.

160

Until such time as the Processor receives written notification from the Collateral Agent, in its capacities as the Collateral Agent for its benefit and the benefit of the other Credit Parties that the obligations of the Loan Party to the Collateral Agent and the other Credit Parties pursuant to the ABL Agreements have been paid and performed in full and that the interests of Collateral Agent and the other Credit Parties in the Credit Card Proceeds have been terminated, all amounts due from time to time from the Processor to the Loan Party (including the Credit Card Proceeds, payment from any reserve account or the like, or other payments) shall be transferred as follows (which transfer instructions may only be changed at the written direction of the Collateral Agent to the Processor):

(a)prior to written notice by the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, as indicated on the attached Schedule A hereto;

(b)upon written notice by the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, daily by ACH, Depository Transfer Check, or Electronic Depository Transfer to:

[Collateral Agent’s Account]

ABA #

Account No.

Re: The Great Atlantic & Pacific Tea Company, Inc.

or

(c) in each case, as the Processor may otherwise be instructed from time to time in writing by an officer of the Collateral Agent.

Upon the request of the Collateral Agent, a copy of each statement provided by the Processor to the Loan Party shall be provided to the Collateral Agent at the following address (which address may be changed upon seven (7) days written notice given to the Processor by the Collateral Agent):

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Loan Administration (The Great Atlantic & Pacific Tea Company, Inc.)

161

This letter may be amended only by notice in writing signed by the Loan Party and the Collateral Agent and may be terminated solely by written notice signed by the Collateral Agent. The Loan Party shall not have any right to terminate this Credit Card Notification.

162

Very truly yours,

[Loan Party]

By:

Name:

Title:

cc:Bank of America, N.A. as Collateral Agent

163

Schedule A

[To Be Completed]

164

Exhibit L - Form of Insurance Provider Notification

INSURANCE PROVIDER NOTIFICATION

[PREPARE ON APPLICABLE LOAN PARTY’S LETTERHEAD - ONE FOR EACH
INSURANCE PROVIDER LISTED ON SCHEDULE 5.14(C) OF THE AMENDED AND
RESTATED CREDIT AGREEMENT]

, 20  

To:[Name and Address of Insurance Provider] (the “Insurance Provider”)

Re:                                                   (the “Loan Party”)

Account Number:

Dear Sir/Madam:

The Loan Party has entered into a financing agreement with Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are making loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (collectively, the “ABL Agreements”). Pursuant to the ABL Agreements, the Loan Party has granted to the Collateral Agent, for its own benefit and the benefit of the other ABL Credit Parties, a security interest in and to, among other things, substantially all of the assets of the Loan Party, including without limitation, all amounts due or to become due from the Insurance Provider to the Loan Party pursuant to the various agreements between the Insurance Provider and the Loan Party (the “Insurance Provider Proceeds”). Such Insurance Provider Proceeds include all sales submitted by the Loan Party to the Insurance Provider for reimbursement and the amounts which the Insurance Provider owes to the Loan Party on account thereof, and all other amounts due or to become due to the Loan Party under the various agreements between the Insurance Provider and the Loan Party.

Under the terms and provisions of the Amended and Restated Credit Agreement, the Loan Party is obligated to deposit or cause to be deposited all Insurance Provider Proceeds into the deposit accounts specified in the following paragraph.

Until such time as the Insurance Provider receives written notification from the Collateral Agent that the obligations of the Loan Party to the Collateral Agent and the other Credit Parties

166

pursuant to the ABL Agreements have been paid and performed in full and that the interests of the Collateral Agent and the other Credit Parties in the Insurance Provider Proceeds have been terminated, all amounts due from time to time from the Insurance Provider to the Loan Party (including Insurance Provider Proceeds, payment from any reserve account or the like, or other payments) shall be transferred as follows (which transfer instructions may only be changed at the written direction of the Collateral Agent to the Insurance Provider):

(a)prior to written notice by the Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, as indicated below:

By check to:

A&P U.S.

P.O. Box 23747

Newark, NJ 07189

By wire or ACH to:

The Great Atlantic & Pacific Tea Company, Inc.

Bank of America

ABA # 021200339

Account No. 405401393 8

Or

(b)Upon written notice by an officer of the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, by ACH, Depository Transfer Check, or Electronic Depository Transfer to:

[Collateral Agent’s Account]

ABA #

Account No.

Re: The Great Atlantic & Pacific Tea Company, Inc.

or

(c)In each case, as the Insurance Provider may otherwise be instructed from time to time in writing by the Collateral Agent.

Upon the request of the Collateral Agent, a copy of each statement provided by the Insurance Provider to the Loan Party shall should be provided to the Collateral Agent at the following address (which address may be changed upon seven (7) days written notice given to the Insurance Provider by the Collateral Agent):

167

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Loan Administration (The Great Atlantic & Pacific Tea Company, Inc.)

This letter may be amended only by notice in writing signed by the Loan Party and the Collateral Agent, and may be terminated solely by written notice signed by the Collateral Agent. The Loan Party shall not have any right to terminate this Insurance Provider Notification.

168

Very truly yours,

[Loan Party]

B y:

Name:

Title:

cc:Bank of America, N.A., as the Collateral Agent

169

Exhibit M - Form of Blocked Account Agreement

(Account — With Activation)

BLOCKED ACCOUNT CONTROL AGREEMENT

This Agreement is entered into as of                                   , 20  , (i) among                                  (“Company”), (ii) Bank of America, N.A., a national bankingassociation with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are making loans or furnishing other financial accommodations to the Company pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 and certain related agreements (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), and (iii)                             (“Bank”), with respect to the following:

A.             Bank has agreed to establish and maintain for Company deposit accounts set forth on Schedule 1 (collectively, the “Account”).

B.              Company has assigned to the Collateral Agent a security interest in the Account and all sums now or hereafter on deposit in or payable or withdrawable from the Account (the “Account Funds”).

C. Company, the Collateral Agent and Bank are entering into this Agreement to evidence the Collateral Agent’s security interest in the Account and such Account Funds and to provide for the disposition of net proceeds of Account Funds deposited in the Account.

Accordingly, Company, the Collateral Agent and Bank agree as follows:

1. (a) This Agreement evidences the Collateral Agent’s control over the Account. Notwithstanding anything to the contrary in the agreement between Bank and Company governing the Account, during the Activation Period (as defined below), Bank will comply with instructions originated by the Collateral Agent as set forth herein directing the disposition of funds in the Account without further consent of Company.

(b)             Company represents and warrants to the Collateral Agent and Bank that it has not assigned or granted a security interest in the Account or any Account Funds deposited in the Account, except to the Collateral Agent.

(c)             Company will not permit the Account to become subject to any other pledge, assignment, lien, charge or encumbrance of any kind, other than the Collateral Agent’s security interest referred to herein.

2. During the Activation Period, Bank shall prevent Company from making any withdrawals from the Account. Prior to the Activation Period, Company may operate and transact business

through the Account in its normal fashion, including making withdrawals from the Account, but covenants to the Collateral Agent it will not close the Account except in accordance with Section 10. Bank shall have no liability in the event Company breaches this covenant to the Collateral Agent. A reasonable period of time following the commencement of the Activation Period, and continuing on each Business Day thereafter during the Activation Period, Bank shall transfer all available balances in the Account to the Collateral Agent at its account specified in the Notice (as defined below). The “Activation Period” means the period which commences within a reasonable period of time not to exceed two Business Days after Bank’s receipt of a written notice from the Collateral Agent in the form of Exhibit A (the “Notice”) and until such time as any such Notice has been revoked or terminated by the Collateral Agent in writing. A “Business Day” is each day except Saturdays, Sundays and Bank holidays. Funds are not available if, in the reasonable determination of Bank, they are subject to a hold, dispute or legal process preventing their withdrawal. Company and the Collateral Agent acknowledge and agree that the Account is linked to, and funds, payroll and disbursement accounts not covered by this Agreement. Company and the Collateral Agent further acknowledge and agree that the payroll and disbursement accounts will be delinked from the Account upon the commencement, and during the continuance, of the Activation Period.

3.               Bank agrees it shall not offset, charge, deduct or otherwise withdraw funds from the Account, except as permitted by Section 4, until it has been advised in writing by the Collateral Agent that the obligations of Company to the Collateral Agent and the other Credit Parties have been paid in full. The Collateral Agent shall notify the Bank promptly in writing upon payment in full of Company’s obligations to the Collateral Agent and the other Credit Parties.

4.               Bank is permitted to charge the Account:

(a)             for its fees and charges relating to the Account or associated with this Agreement; and

(b)             in the event any Account Funds deposited into the Account are returned unpaid for any reason or for any breach of warranty claim.

5. (a) If the balances in the Account are not sufficient to compensate Bank for any fees or charges due Bank in connection with the Account or this Agreement, Company agrees to pay Bank on demand the amount due Bank. Company will have breached this Agreement if it has not paid Bank, within five days after such demand, the amount due Bank.

(b)             If the balances in the Account are not sufficient to compensate Bank for any returned Account Funds, Company agrees to pay Bank on demand the amount due Bank. If Company fails to so pay Bank immediately upon demand, the Collateral Agent agrees to pay Bank within five days after Bank’s demand to the Collateral Agent to pay any amount received by the Collateral Agent with respect to such returned Account Funds. The failure to so pay Bank shall constitute a breach of this Agreement.

(c)             Company hereby authorizes Bank, without prior notice, from time to time to debit any other account Company may have with Bank for the amount or amounts due Bank under subsection 5(a) or 5(b).

6.                           (a) Bank will send information regarding deposits to the Account to the address specified below for Company or as otherwise specified in writing by Company to Bank, and will, upon request of the Collateral Agent, send a copy of each such deposit advice to the address specified below.

(b) In addition to the original Bank statement provided to the Company, upon request of the Collateral Agent, Bank will send a duplicate of such statement to the address specified below.

7.                            (a) Bank will not be liable to Company or the Collateral Agent for any expense, claim, loss, damage or cost (“Damages”) arising out of or relating to its performance under this Agreement other than those Damages which result directly from its acts or omissions constituting negligence or intentional misconduct.

(b)          In no event will Bank be liable for any special, indirect, exemplary or consequential damages, including but not limited to lost profits.

(c)          Bank will be excused from failing to act or delay in acting, and no such failure or delay shall constitute a breach of this Agreement or otherwise give rise to any liability of Bank, if (i) such failure or delay is caused by circumstances beyond Bank’s reasonable control, including but not limited to legal constraint, emergency conditions, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor dispute, war, riot, theft, flood, earthquake or other natural disaster, breakdown of public or private or common carrier communications or transmission facilities, equipment failure, or negligence or default of Company

or the Collateral Agent, or (ii) such failure or delay resulted from Bank’s reasonable belief that the action would have violated any guideline, rule or regulation of any governmental authority.

(d)           Bank shall have no duty to inquire or determine whether Company’s obligations to the Collateral Agent, the other Credit Parties, or any other party are in default or whether the Collateral Agent is entitled to provide the Notice to Bank. Bank may rely on notices and communications it believes in good faith to be genuine and given by the appropriate party.

(e)           Notwithstanding any of the other provisions in this Agreement, in the event of the commencement of a case pursuant to Title 11, United States Code, filed by or against Company, or in the event of the commencement of any similar case under then applicable federal or state law providing for the relief of debtors or the protection of creditors by or against Company, Bank may act as Bank deems necessary to comply with all applicable provisions of governing statutes and shall not be in violation of this Agreement as a result.

(1) Bank shall be permitted to comply with any writ, levy order or other similar judicial or regulatory order or process concerning the Account or any Account Funds and shall not be in violation of this Agreement for so doing.

8. Company and the Collateral Agent shall jointly and severally indemnify Bank against, and hold it harmless from, any and all liabilities, claims, costs, expenses and damages of any nature (including but not limited to allocated costs of staff counsel, other reasonable attorney’s fees and any fees and expenses) in any way arising out of or relating to disputes or legal actions concerning Bank’s provision of the services described in this Agreement (the foregoing, the

“Indemnification Liabilities”). This section does not apply to any cost or damage attributable to the gross negligence or intentional misconduct of Bank. Company’s and the Collateral Agent’s obligations under this section shall survive termination of this Agreement, except as described in subsection 10(a) below.

9.             Company and the Collateral Agent shall jointly and severally pay to Bank, upon receipt of Bank’s invoice, all costs, expenses and attorneys’ fees (including allocated costs for in-house legal services) incurred by Bank in connection with the enforcement of this Agreement and any instrument or agreement required hereunder, including but not limited to any such costs, expenses and fees arising out of the resolution of any conflict, dispute, motion regarding entitlement to rights or rights of action, or other action to enforce Bank’s rights in a case arising under Title 11, United States Code. Company agrees to pay Bank, upon receipt of Bank’s invoice, all reasonable costs, expenses and attorneys’ fees (including allocated costs for in-house legal services) incurred by Bank in the preparation and administration of this Agreement (including any amendments hereto or instruments or agreements required hereunder).

10.           Termination and Assignment of this Agreement shall be as follows:

(a)           The Collateral Agent may terminate this Agreement by providing notice to the other parties to this Agreement that all of Company’s obligations which are secured by Account Funds and the Account are paid in fiill. The Collateral Agent may also terminate or it may assign this Agreement upon 30 days’ prior written notice to the other parties to this Agreement. Bank may terminate this Agreement upon 30 days’ prior written notice to the other parties to this Agreement. Company may not terminate this Agreement except with the written consent of the Collateral Agent

and upon prior written notice to Bank. Upon termination by the Collateral Agent pursuant to this paragraph, the Collateral Agent shall not be responsible for any Indemnification Liabilities or costs and expenses of Bank to the extent that such Indemnification Liabilities or such costs and expenses of Bank are incurred after such termination. Indemnification Liabilities arise upon activation and only the Collateral Agent has this obligation under Section 8 of this Agreement.

(b)           Notwithstanding subsection 10(a), Bank may terminate this Agreement at any time by written notice to the other parties to this Agreement if either Company or the Collateral Agent breaches any of the terms of this Agreement, or any other agreement with Bank.

11. (a) Each party represents and warrants to the other parties that (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.

(b) The parties each agree that it shall be deemed to make and renew each representation and warranty in subsection 11(a) on and as of each day on which Company uses the services set forth in this agreement.

12.                         (a) This Agreement may be amended only by a writing signed by all parties to this Agreement; except that Bank’s charges are subject to change by Bank upon 30 days’ prior written notice to Company.

(b)          This Agreement may be executed in counterparts; all such counterparts shallconstitute but one and the same agreement.

(c)          This Agreement controls in the event of any conflict between this Agreement and any other document or written or oral statement. This Agreement supersedes all prior understandings, writings, proposals, representations and communications, oral or written, of any party relating to the subject matter hereof.

(d) This Agreement shall be governed by, and in accordance with, the laws of the state of New York (excluding the conflicts of laws principles thereof, but including New York General Obligations Law Sections 5-1401 and 51402).

13.           Any written notice or other written communication to be given under this Agreement shall be addressed to the each party at its address set forth on the signature page of this Agreement or to such other address as a party may specify in writing. Except as otherwise expressly provided herein, any such notice shall be effective upon receipt.

14.           Nothing contained in the Agreement shall create any agency, fiduciary, joint venture or partnership relationship between Bank and Company or the Collateral Agent.

[signature pages follow]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the day and year first above written.

(“Company”)
By:		Address for notices:
Name:
Title:
	Bank of America, N.A., as Collateral Agent
B y:		Address for notices:
Name: Stephen DeMenna Title: Managing Director		Bank of America, N.A., as Collateral Agent 100 Federal Street, 9th Floor
		Boston, Massachusetts 02110
		Attention: Stephen DeMenna
		Managing Director
		Telephone: (617) 434-2786
		Facsimile: (617) 434-4131
		E-mail: stephen.l.demenna@bankofamerica.com
, as Bank
By:		Address for notices:
Name:
Title:

SCHEDULE 1

Account Name Account Number

EXHIBIT A TO BLOCKED ACCOUNT AGREEMENT
NOTICE

BANK OF AMERICA, N.A.

To:	Bank of America, N.A.
	[Address]

Re:

Ladies and Gentlemen:

Reference is made to that certain Blocked Account Agreement dated                                    , 20    (the “Agreement”) among                              (“Company”), Bank of America, N.A., as collateral agent for its own benefit and the benefit of a syndicate of revolving lenders and certain other credit parties (the “Collateral Agent”), and you regarding the above-described account (the “Account”). In accordance with Section 2 of the Agreement, we hereby give you notice of our exer cise of control of the Account and we hereby instruct you to transfer funds to our account as follows:

Bank Name:

ABA No.:

Account Name:

Account No.:

Very truly yours,

Bank of America, N.A., as the Collateral Agent

By:

Name:

Title:

ACKNOWLEDGED AND AGREED:
, as Bank
By
	Name:
	Title:

Exhibit N - Form of Coinstar Notification

COINSTAR, INC. NOTIFICATION

[PREPARE ON APPLICABLE LOAN PARTY’S LETTERHEAD]

20

To:	Coinstar, Inc. (“Coinstar”)
	1800 114th Avenue

Bellevue, Washington, 98004

Re:                                                               (the “Loan Party”)

Dear Sir/Madam:

This letter relates to the arrangements to have coin counting machines installed and serviced by or through Coinstar as set forth in certain installation agreements between Coinstar (or certain of its affiliates) and The Great Atlantic & Pacific Tea Company, Inc. (or certain of its affiliates), including that certain Coinstar Installation Agreement dated April 29, 2002 (as the same may be amended, modified or supplemented from time to time, the “Agreement”).

The Loan Party has entered into a financing agreement with Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are making loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (collect ively, the “ABL Agreements”) Pursuant to the ABL Agreements, the Loan Party has granted to the Collateral Agent, for its own benefit and the benefit of the other Credit Parties, a security interest in and to, among other things, substantially all of the assets of the Loan Party, including without limitation, all amounts due or to become due from Coinstar to the Loan Party pursuant to the Agreement (the “Coinstar Proceeds”). Such Coinstar Proceeds include all amounts due or to become due to the Loan Party under the Agreement.

Under the terms and provisions of the Amended and Restated Credit Agreement, the Loan Party is obligated to deposit or cause to be deposited all Coinstar Proceeds into the deposit accounts specified in the following paragraph.

Until such time as Coinstar receives written notification from the Collateral Agent that the obligations of the Loan Party to the Collateral Agent and the other Credit Parties pursuant to

184

the ABL Agreements have been paid and performed in full and that the interests of the Collateral Agent and the other Credit Parties in the Coinstar Proceeds have been terminated, all amounts due from time to time from Coinstar to the Loan Party (including the Coinstar Proceeds, payment from any reserve account or the like, or other payments) shall be transferred as follows (which transfer instructions may only be changed at the written direction of the Collateral Agent to Coinstar):

(a)     prior written notice by the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, as indicated on the attached Schedule A hereto;

(b)     upon written notice by the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, daily by ACH, Depository Transfer Check, or Electronic Depository Transfer to:

[Collateral Agent’s Account]

ABA #

Account No.

Re: The Great Atlantic & Pacific Tea Company, Inc.

or

(c) in each case, as Coinstar may otherwise be instructed from time to time in writing by an officer of the Collateral Agent.

Upon the request of the Collateral Agent, a copy of each statement provided by Coinstar to the Loan Party shall be provided to the Collateral Agent at the following address (which address may be changed upon seven (7) days written notice given to Coinstar by the Collateral Agent):

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Loan Administration (The Great Atlantic & Pacific Tea Company, Inc.)

This letter may be amended only by notice in writing signed by the Loan Party and the Collateral Agent, and may be terminated solely by written notice signed by the Collateral Agent. The Loan Party shall not have any right to terminate this Coinstar Notification.

185

Very truly yours,

[Loan Party]

By:

Name:

Title:

cc:     Bank of America, N.A., as the Collateral Agent

186

Schedule A

[To Be Completed]

187

Exhibit 0 - Form of DDA Notification

DDA NOTIFICATION

[PREPARE ON APPLICABLE LOAN PARTY’S LETTERHEAD - ONE FOR EACH DDA
LISTED ON SCHEDULE 5.14(A) OF THE AMENDED AND RESTATED CREDIT
AGREEMENT]

                   , 20

To:[Name and Address of Bank] (the “Depository Bank”)

Re:                                                (the “Loan Party”)

Account Number(s):                              

Dear Sir/Madam:

This letter relates to the above referenced account number(s) and any other depository account(s) (collectively, the “Account”) which the Loan Party now or hereafter maintains with the Depository Bank. The term “Account” shall also mean any certificates of deposit, investments, or other evidence of indebtedness heretofore or hereafter issued by the Depository Bank to or for the account of the Loan Party.

The Loan Party has entered into a financing agreement with Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are making loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (collect ively, the “ABL Agreements”). Pursuant to the ABL Agreements, the Loan Party has granted to the Collateral Agent, for its own benefit and the benefit of the other Credit Parties, a security interest in and to, among other things, substantially all of the assets of the Loan Party, including without limitation, the Account and all amounts now or hereafter deposited therein or evidenced thereby (the “Account Proceeds”). Such Account Proceeds include all the present and all future contents of the Account and any and all proceeds resulting therein. Any right of setoff, banker’s lien, or the like which the Depository Bank may otherwise have with respect to the Account is subject, to the fullest extent permitted under applicable law, to the prior right of the Collateral Agent to the Account and the contents of the Account.

Under the terms and provisions of the Amended and Restated Credit Agreement, the Loan Party is obligated to deposit or cause to be deposited all Account Proceeds into the deposit accounts specified in the following paragraph.

Until such time as the Depository Bank receives written notification from the Collateral Agent that the obligations of the Loan Party to the Collateral Agent and the other Credit Parties pursuant to the ABL Agreements have been paid and performed in full and that the interests of the Collateral Agent and the other Credit Parties in the Account Proceeds have been terminated, the Loan Party will transfer at least three (3) times each calendar week by ACH or wire all funds from time to time on deposit in the Account (which transfer instructions may only be changed at the written direction of the Agent to the Depository Bank) to one of the following accounts:

(a)     prior to written notice by the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, as indicated hereto:

{(i)

JPMorgan Chase Bank

ABA # 021000021

Account No. 323017436

or

(ii)

Bank of America

ABA # 021200339

Account No. 0154104381]

(b)        Upon written notice by an officer of the Collateral Agent that a “Triggering Event” under, and as defined in, the Amended and Restated Credit Agreement has occurred, daily by ACH, Depository Transfer Check, or Electronic Depository Transfer to:

[Collateral Agent’s Account]

BA #

Account No.

Re: The Great Atlantic & Pacific Tea Company, Inc.

Or

190

(c) In each case, as the Depository Bank may otherwise be instructed from time to time in writing by an officer of the Collateral Agent.

Upon the request of the Collateral Agent, a copy of each statement provided by the Depository Bank to the Loan Party shall be provided to the Collateral Agent at the following address (which address may be changed upon seven (7) days written notice given to the Depository Bank by the Collateral Agent, as applicable):

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Loan Administration (The Great Atlantic & Pacific Tea Company, Inc.)

This letter may be amended only by notice in writing signed by the Loan Party and the Collateral Agent and may be terminated solely by written notice signed by the Collateral Agent. The Loan Party shall not have any right to terminate this Account Notification.

191

Very truly yours,

[Loan Party]

By:

Name:

Title:

cc:     Bank of America, N.A., as Collateral Agent

192

EXHIBIT P-1

PRIORITY OF CLAIMS WAIVER (Landlord)

DATED: as of                                  , 20   

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,                                       (the “Landlord”), executes this waiver (this “Waiver”) in favor of Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Par ties”) which are making loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (as amended, restated, supplemented or otherwise modified from time to time, collectively with the Amended and Restated Credit Agreement, the “ABL Agreements”).

WITNESSETH:

WHEREAS, the Landlord owns real property located at                                               (the “Premises”), which real property the Landlord leases to [                  ], a corporation organized and existing under the laws of the State of                           (the “Tenant” ;) pursuant to the terms of that certain [Lease Agreement], dated as of                          by and between the Landlord and the Tenant (the “Lease”).

WHEREAS, pursuant to the Amended and Restated Credit Agreement, the Tenant has entered into loan arrangements (collectively, the “Loan Arrangements”) pursuant to which the Collateral Agent and the other Credit Parties have agreed to make loans or furnish other financial accommodations to the Tenant, among others.

WHEREAS, such Loan Arrangements will be secured by, among other things, all of the Tenant’s present and after acquired assets including, without limitation, the Tenant’s inventory, goods, machinery, equipment, furniture and trade fixtures and other personal property (together with all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing, collectively, the “Collateral”).

NOW THEREFORE, in order to induce the Collateral Agent and the other Credit Parties to establish and maintain the Loan Arrangements, the Landlord hereby represents, warrants, covenants and agrees as follows:

194

1.The Landlord represents that the Tenant is not in default under the terms of the Lease.

2.The Landlord has been advised that that the Collateral Agent, for its own benefit and the benefit of the other Credit Parties, has been granted a security interest by the Tenant in and to the Collateral, certain of which Collateral is presently located, or may at any time hereafter be located, in, at, or upon the Premises.

3.The Landlord hereby waives and releases in favor of the Collateral Agent (for its own benefit and the benefit of the other Credit Parties) (a) any and all rights of distraint, levy, and execution which the Landlord may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and all other interests or claims of every nature whatsoever which the Landlord may now or hereafter have in or against the Collateral, including without limitation, for any rent, storage charges, or other sums due, or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise any of the Landlord’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or the Landlord’s liens or security interests in the Collateral, if any, unless and until the Landlord receives written notice from the Collateral Agent that the Tenant’s obligations to the Collateral Agent and the other Credit Parties pursuant to the Loan Arrangements have been paid in full, and that the commitments of the Collateral Agent and the other Credit Parties to make loans or furnish other financial accommodations to the Tenant pursuant to the Amended and Restated Credit Agreement have been terminated. The foregoing Waiver is for the benefit of the Collateral Agent and the other Credit Parties only and does not affect the obligations of the Tenant to the Landlord.

4.Until the Landlord receives written notice from the Collateral Agent that all obligations of the Tenant to the Collateral Agent and the other Credit Parties pursuant to the Loan Arrangements have been paid in full and the commitments of the Collateral Agent and the other Credit Parties to make loans or furnish other financial accommodations to the Tenant pursuant to the Amended and Restated Credit Agreement have been terminated, the Landlord:

(a)Shall not interfere with any enforcement by the Collateral Agent of such Collateral Agent’s rights in and to the Collateral;

(b)Shall permit the Collateral Agent, at its option, to enter and use the Premises for the purpose of repossessing, removing, selling or otherwise dealing with any of the Collateral, and such license shall be irrevocable and shall commence on the date (the “Access Commencement Date”) which is five (5) business days following Landlord’s receipt of written notice from the Collateral Agent that the Collateral Agent intends to enter the Premises pursuant to the rights granted to the Collateral Agent hereunder, and such license shall expire on the date that is one hundred and eighty (180) days after the Access Commencement Date (the period during which such license shall be in effect, the “ Access Period”); provided, that

195

the Access Period shall be tolled during any period in which the Collateral Agent has been stayed from taking action to remove or dispose of the Collateral pursuant to any order of court, state or federal law, or otherwise, in which case the Collateral Agent shall have an additional period of time (not less than one hundred and eighty (180) consecutive days) after the expiration or termination of any such stay, in which to repossess and/or dispose of the Collateral located upon the Premises; and

(c)Shall send notice in writing of any termination of, or default under, or abandonment or surrender under (which constitute a default under the Lease) the Lease to the Collateral Agent at the address set forth below and prior to the Landlord’s taking any action to terminate the Lease or to evict the Tenant from the Premises for breach of the Lease, give the Collateral Agent a reasonable opportunity to preserve, protect, liquidate, or remove any Collateral on the Premises and, if the Collateral Agent so elects, to cure such breach of the Lease. Notwithstanding the provisions of this paragraph, the Collateral Agent shall not have any obligation to cure any such breach or default. The cure of any such breach or default by the Collateral Agent on any one occasion shall not obligate the Collateral Agent to cure any other breach or default or to cure such default on any other occasion.

5.To the extent not paid or prepaid by the Tenant, the Collateral Agent shall pay the Landlord a reasonable sum for its use and occupancy of the Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by the tenant under the Lease from the date on which the Collateral Agent shall have taken possession of the Collateral on the Premises until the date on which the Collateral Agent vacates the Premises, it being understood, however, that the Collateral Agent shall not, thereby, have assumed any of the obligations of the Tenant to the Landlord, including, without limitation, any obligation to pay any past due rent owing by the Tenant.

6.The Landlord shall be fully protected in acting on any order, notice, or direction by the Collateral Agent with respect to the Collateral without making any inquiry whatsoever as to the Collateral Agent’s right or authority to give such order, notice, or direction. The Landlord agrees that the Collateral Agent may exercise the rights available to the Collateral Agent hereunder through the Tenant or the Tenant’s or the Collateral Agent’s representatives or agents (to the extent that the Collateral Agent has consented to the exercise of such rights by such parties) regardless of whether the Tenant has defaulted under the Lease.

7.All notices under this Waiver shall be made to the following addresses by recognized overnight courier, by certified mail or registered mail (return receipt requested), by hand delivery, by facsimile transmission or by electronic mail:

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If to Collateral Agent:

Bank of America, NA.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Stephen DeMenna

Email: stephen.l.demenna@bankofamerica.com

Facsimile: (617) 434-4131

If to the Landlord:

Attention:

Email:

Facsimile:

Notices sent by hand or overnight courier service shall be deemed to have been given when received. Notices sent by certified mail or registered mail (return receipt requested), shall be deemed to have been given on the date on which such notice or request is received as indicated in such return receipt. Notices and other communications sent to an e-mail address or via facsimile transmission shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

8.This Waiver shall inure to the benefit of the Collateral Agent and each of the other Credit Parties, and each of their respective successors and assigns, and shall be binding upon the Landlord, its successors and assigns.

9.This Waiver may not be amended or waived except by an instrument in writing signed by the Collateral Agent, the Landlord, and the Tenant. This Waiver shall be governed by, and construed in accordance with, the laws of the state in which the Premises is located, without regard to its principles of conflict of laws.

10.This Waiver 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.

11.This Waiver may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Waiver by facsimile transmission or electronic mail

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shall be binding on each party hereto as if the original of such facsimile had been delivered to the other party.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, this Waiver is executed as of the day and year first above written.

[NAME] , as Landlord

B y:

Name:

Title:

BANK OF AMERICA, N.A., as Collateral Agent

B y:

Name:

Title:

Acknowledged and agreed:

                      ], as Tenant

B y:

Name:

Title:

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EXHIBIT P-2

PRIORITY OF CLAIMS WAIVER (Bailee)

DATED: as of                                               , 20   

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,                                  (the “Bailee”), executes this waiver (this “Waiver”) in favor of Bank of America, N.A., a national banking association with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of a syndicate of lenders and certain other secured parties (the “Credit Parties”) which are m aking loans or furnishing other financial accommodations to the Loan Party pursuant to the Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) and certain related agreements (as amended, restated. supplemented or otherwise modified from time to time, collectively with the Amended and Restated Credit Agreement, the “ABL Agreements”).

WITNESSETH:

WHEREAS, the Bailee owns and operates certain real property located at                                     (the “Premises”), at which premises                                     or its affiliates (collectively, the “Company”) stores or will store certain Collateral (as defined below) now or hereafter owned by the Company and/or at which certain Collateral will be located pursuant to a bailment agreement, processing agreement, consignment, “sale or return” or similar agreem ent (regardless of when, or whether, title passes to the Bailee) or any other agreement for any purpose.

WHEREAS, pursuant to the Amended and Restated Credit Agreement, the Company has entered into loan arrangements (collectively, the “Loan Arrangements”) pursuant to which the Collateral Agent and the other Credit Parties have agreed to make loans or furnish other financial accommodations to the Company, among others.

WHEREAS, such Loan Arrangements will be secured by, among other things, all of the Company’s present and after acquired assets including, without limitation, the Company’s inventory, goods, machinery, equipment, furniture and trade fixtures and other personal property (together with all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing, collectively, the “Collateral”).

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WHEREAS, the Company has delivered, and from time to time hereafter will deliver, to the Bailee certain Collateral at the Premises.

NOW THEREFORE, in order to induce the Collateral Agent and the other Credit Parties to establish and maintain the Loan Arrangements, the Bailee hereby represents, warrants, covenants and agrees as follows:

1.The Bailee represents that the Company is not in default under the terms of any agreement with the Bailee pursuant to which the Bailee has the possession, care, custody or control of any Collateral.

2.The Bailee has been advised the Collateral Agent, for its own benefit and the benefit of the other Credit Parties, has been granted a security interest by the Company in and to the Collateral, certain of which Collateral is presently located, or may at any time hereafter be located, in, at, or upon the Premises. The Bailee hereby acknowledges and agrees that title to all Collateral now or hereafter received from the Company and held by the Bailee for processing, storing, sale or otherwise shall at all times remain with the Company, and the Bailee shall make no claim with respe ct thereto. The Bailee further agrees that all possessory rights now or hereafter claimed by the Bailee with respect to the Collateral are expressly subordinate and subject to the Collateral Agent’s rights as provided herein. The Bailee agrees, at the Company’s expense, to execute in favor of the Collateral Agent, for the benefit of the Credit Parties, or join with Company in the execution of, such documents, instruments, financing statements, certificates, and agreements as the Collateral Agent may reasonably request from the Bailee hereafter to evidence or give notice of such security interest.

3.The Bailee hereby waives and releases in favor of the Collateral Agent (for its own benefit and the benefit of the other Credit Parties) (a) any and all statutory liens, security interests, or other liens which the Bailee may now or hereafter have in the Collateral; and (b) any and all other interests or claims of every nature whatsoever which the Bailee may now or hereafter have in or against the Collateral, including without limitation, for any rent, storage charges, warehouse fees, or other sums due, or to become due, to the Bailee by the Company. The Bailee agrees not to e xercise any of the Bailee’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or the Bailee’s liens or security interests in the Collateral, if any, unless and until the Bailee receives written notice from the Collateral Agent that the Company’s obligations to the Collateral Agent and the other Credit Parties pursuant to the Loan Arrangements have been paid in full, and that the commitments of the Collateral Agent and the other Credit Parties to make loans or furnish other financial accommodations to the Company pursuant to the Amended and Restated Credit Agreement have been terminated. The foregoing Waiver is for the benefit of the Collateral Agent and the other Credit Parties only and does not affect the obligations of the Company to the Bailee.

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4.Until the Bailee receives written notification from the Collateral Agent to the contrary, the Bailee is authorized to accept instructions with respect to the Collateral from the Company. Upon the receipt of written notice from the Collateral Agent, and until such notice is rescinded by the Collateral Agent, the Bailee shall only honor any and all instructions from the Collateral Agent with respect to the Collateral, including, any direction from the Collateral Agent to dispose of all or any portion of the Collateral at any time, without any further consent or instruction from the Company.

5.The Bailee agrees that the Collateral Agent, through its authorized representatives or agents, may enter upon the Premises from time to time for the purpose of inspecting, repairing, removing, or conducting a sale or sales of any or all of the Collateral, and the Bailee shall not hinder or prevent the Collateral Agent from taking any such action. The Bailee shall not require the Collateral Agent to produce any warehouse receipts which may have been furnished with respect to the Collateral to take possession of the Collateral. The Bailee further agrees that the Collateral Agent shall not have any obligation or liability to the Bailee except for reasonable costs and expenses actually incurred by the Bailee to repair any damage to the Premises directly caused by the Collateral Agent or its authorized representatives or agents in any such removal of the Collateral.

6.The Bailee hereby agrees that the Collateral at all times will be kept segregated and apart from other property, if any, from time to time located on the Premises.

7.Nothing contained in this agreement shall modify the obligation of the Company to pay charges and fees of the Bailee. The Bailee agrees to promptly notify the Collateral Agent (i) if at any time any charges or fees owing from the Company become forty-five (45) days past due or (ii) upon the occurrence of any breach or default by the Company under any agreement with the Company pursuant to which the Bailee has the care, custody, or control of any of the Collateral. Upon the receipt of such notice, the Bailee agrees that the Collateral Agent, at its option, may (a) maintain the Collateral at the Premises for a period of up to sixty (60) days, without charge other than reasonable and customary storage fees and charges accruing during such sixty (60) day period as may be mutually agreed to between the Bailee and the Collateral Agent, (b) enter the Premises during the Bailee’s normal business hours, upon notice to the Bailee (or at such other mutually agreeable time as may be determined by the Collateral Agent and the Bailee) in order to remove the Collateral therefrom, without charge, other than accrued processing charges with respect to Collateral removed from the Premises by the Collateral Agent, and/or (c) require the Bailee to process or complete processing of any Collateral then or thereafter delivered to the Bailee, at a price mutually agreed to by the Collateral Agent and the Bailee. In any such event, the Bailee agrees to cooperate with the Collateral Agent and not to hinder the Collateral Agent’s actions in enforcing its remedies with respect to the Collateral. In lieu of the foregoing, the Collateral Agent may cure any breach by the Company of its obligations to the Bailee, provided that such cure is proffered by the

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Collateral Agent not more than thirty (30) days after the Collateral Agent’s receipt of such written notice of such default. Notwithstanding the provisions of this paragraph, the Collateral Agent shall have no obligation to cure any such breach or default. The cure of any such breach or default by the Collateral Agent on any one occasion shall not obligate the Collateral Agent to cure any other breach or default or to cure such default on any other occasion.

8.If from time to time the Bailee ever comes into possession or control of any identifiable cash proceeds arising from the sale of any of the Collateral, such proceeds shall be held by the Bailee in trust for the benefit of the Collateral Agent, and the same shall be paid and delivered to the Collateral Agent promptly after receipt by the Bailee.

9.Except upon prior written notice (with reasonable particularity) to the Collateral Agent, the Bailee shall not (i) remove any Collateral from the Premises (other than removals in accordance with the instructions of the Company in the ordinary course of business) or (ii) terminate, with or without cause, any agreement pursuant to which the Bailee has the care, custody, or control of any Collateral.

10.The Bailee shall not issue any negotiable warehouse receipts with respect to any Collateral of which the Bailee has the care, custody, or control.

11.The Bailee shall be fully protected in acting on any order, notice, or direction by the Collateral Agent with respect to the Collateral without making any inquiry whatsoever as to the Collateral Agent’s right or authority to give such order, notice, or direction.

12.All notices under this Waiver shall be made to the following addresses by recognized overnight courier, by certified mail or registered mail (return receipt requested), by hand delivery, by facsimile transmission or by electronic mail:

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Stephen DeMenna

Email: stephen.l.demenna@bankofamerica.com

Facsimile: (617) 434-4131

If to the Bailee:

Attention:

Email:

Facsimile:

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Notices sent by hand or overnight courier service shall be deemed to have been given when received. Notices sent by certified mail or registered mail (return receipt requested), shall be deemed to have been given on the date on which such notice or request is received as indicated in such return receipt. Notices and other communications sent to an e-mail address or via facsimile transmission shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

13.This Waiver shall inure to the benefit of the Collateral Agent and each of the other Credit Parties, and each of their respective successors and assigns, and shall be binding upon the Bailee, its successors and assigns.

14.This Waiver may not be amended or waived except by an instrument in writing signed by the Collateral Agent, the Bailee, and the Company. This Waiver shall be governed by, and construed in accordance with, the laws of the state in which the Premises is located, without regard to its principles of conflict of laws.

15.This Waiver 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.

16.This Waiver may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Waiver by facsimile transmission or electronic mail shall be binding on each party hereto as if the original of such facsimile had been delivered to the other party.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, this Waiver is executed as of the day and year first above written.

	[NAME], as Bailee
	By:
	Name:
	Title:
	BANK OF AMERICA, N.A., as Collateral Agent
	By:
	Name:
	Title:
Acknowledged and agreed:
[Company]
B y:
Name:
Title:

Form of Mortgage            Exhibit Q-1

RECORDING REQUESTED BY:

AND WHEN RECORDED MAIL TO:

Space above this line for recorder’s use only

[OPEN-END] MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT’

THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT dated this 27th day of December 2007, to be effective as of December 3, 2007 (this “Mortgage”), by [                          ], a [                             ], having an office in care of The Great Atlantic & Pacific Tea Company, Inc., Two Paragon Drive, Montvale, New Jersey 07645 (the “Mortgagor”), to BANK OF AMERICA, N.A., a national banking association, having an office at 100 Federal Street, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for the benefit of the Secured Parties (as defined below) (the “Mortgagee”);

WITNESSETH THAT:

A.Reference is made to (a) that certain Credit Agreement dated as of December 3, 2007 (as amended, supplemented or otherwise modified from time to time, the “Existing Agreement”), entered into by, among others, The Great Atlantic & Pacific Tea Company, Inc. (the “Company”), a Maryland corporation, the other Borrowers party thereto (including, without limitation, the Mortgagor), the lenders from time to time party thereto, the Collateral Agent and Bank of America, N.A., a national banking association, as Administrative Agent (in such capacity, the “Administrative Agent”); and (b) that certain Security Agreement, dated as of December 3, 2007 (as amended, supplemented or otherwise modified from time to time, the “Security Agreement”) entered into by, among others, the Company, the other Borrowers (including, without limitation, the Mortgagor), certain guarantors named therein, and the Collateral Agent.

B.Pursuant to the terms and conditions of that certain Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) entered into by, among others, the Company, the

This form of Mortgage shall be revised to incorporate any local law requirements under applicable law.

other Borrowers (including, without limitation, the Mortgagor), the lenders party to the Existing Agreement and certain other lenders party thereto (collectively, the “Lenders”), the Administrative Agent and the Collateral Agent, the parties to the Existing Agreement have agreed to amend and restate the Existing Agreement in its entirety. Capitalized terms used herein and not defined herein shall have meanings assigned to such terms in the Amended and Restated Credit Agreement.

C.The Lenders have agreed to make Loans to the Borrowers, and the Issuing Bank has agreed to issue Letters of Credit for the account of the Borrowers, pursuant to, and upon the terms and subject to the conditions specified in, the Amended and Restated Credit Agreement. The Mortgagor will receive substantial benefits from the execution, delivery and performance of the Loan Documents and is, therefore, willing to enter into this Mortgage.

D.The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are conditioned upon, among other things, the execution and delivery by the Mortgagor of an agreement in the form hereof to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borro wers under the Amended and Restated Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of L/C Disbursements, interest thereon and obligations to provide cash collateral, (iii) obligations to repay overdraft amounts plus interest, if any, customarily applied on overdrafts and all obligations (including without limitation fees, costs, expenses and indemnities) owed to any Lender or an Affiliate of a Lender arising from any Bank Products or Cash Management Services provided by a Lender or Affiliate of a Lender to any Loan Party and (iv) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties to the Secured Parties under the Amended and Restated Credit Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Amended and Restated Credit Agreement and the other Loan Documents, (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Loan Party under or pursuant to this Mortgage or the other Loan Documents, and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender or an Affiliate of a Lender at the time such Hedging Agreement was entered into (all the monetary and other obligations described in the preceding clauses (a) through (d) being collectively called the “Obligations”).

E. Pursuant to the requirements of the Amended and Restated Credit Agreement, the Mortgagor is entering into this Mortgage to create a security interest in the Mortgaged Property (as defined herein) to secure the performance and payment by the Mortgagor of the Obligations. The Amended and Restated Credit Agreement also requires the granting by the Mortgagor and other Loan Parties of other mortgages (the “Other Mortgages”) that create security interests in certain mortgaged properties other than the Mortgaged Property to secure the performance of the Obligations.

Granting Clauses

NOW THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure (A) the due and punctual payment and performance of the Obligations, (B) the due and punctual payment by the Mortgagor of all taxes and insurance premiums relating to the Mortgaged Property and (C) all

disbursements made by the Mortgagee for the payment of taxes, common area charges or insurance premiums, all fees, expenses or advances in connection with or relating to the Mortgaged Property, and interest on such disbursements and other amounts not timely paid in accordance with the terms of the Amended and Restated Credit Agreement, this Mortgage and the other Loan Documents, the Mortgagor hereby gives, GRANTS, bargains, sells, warrants, aliens, remises, releases, conveys, assigns, transfers, mortgages, hypothecates, deposits, pledges, sets over, confirms, and otherwise grants a security interest unto Mortgagee (for the ratable benefit of the Secured Parties (as defined in the Security Agreement)) with POWER OF SALE, all its estate, right, title and interest in, to and under any and all of the following described property (the “Mortgaged Property”) whether now owned, leas ed or held or hereafter acquired and Mortgagor does hereby bind itself, its successors and assigns to warrant and forever defend the title to the Mortgaged Property unto Mortgagee:

(1)all of the Mortgagor’s right, title and interest in all the land more particularly described on Exhibit A hereto (the “Owned Land”);

(2)all of the Mortgagor’s right, title and interest in and to each leasehold estate created pursuant to the lease or leases more particularly described in Exhibit B hereto (such lease or leases, as amended, supplemented, or otherwise modified from time to time, individually, a “Subject Lease” and, collectively, the “Subject Leases”) and affecting the land more particularly described in Exhibit C hereto (the “Leased Land”, together with the Owned Land, the “Land”), including, without limitation, all rights of the lessee under each Subject Lease;

(3)all of the Mortgagor’s right, title and interest in all rights appurtenant to the Land, including the easements over certain other adjoining land granted by any easement agreements, covenant or restrictive agreements and all air rights, mineral rights, water rights, oil and gas rights and development rights, if any, relating thereto, and also together with all of the other easements, rights, privileges, interests, hereditaments and appurtenances thereunto belonging or in anyway appertaining and all of the estate, right, title, interest, claim or demand whatsoever of the Mortgagor therein and in the streets and ways adjacent thereto, either in law or in equity, in possession or expectancy, now or hereafter acquired (the Land and the property described in this subparagraph (3), the “Premises”);

(4)all of the Mortgagor’s right, title and interest in all buildings, improvements, structures, paving, parking areas, walkways and landscaping now or hereafter erected or located upon the Land, and all fixtures of every kind and type affixed to the Premises or attached to or forming part of any structures, buildings or improvements and replacements thereof now or hereafter erected or located upon the Land (the “Improvements”);

(5) all of the Mortgagor’s right, title and interest in all apparatus, movable appliances, building materials, equipment, fittings, furnishings, furniture, machinery and other articles of tangible personal property of every kind and nature, and replacements thereof, now or at any time hereafter placed upon or used in any way in connection with the use, enjoyment, occupancy or operation of the Improvements or the Premises, including all of the Mortgagor’s books and records relating thereto and including all pumps, tanks, goods, machinery, tools, equipment (including fire sprinklers and alarm systems, fire prevention or control systems, cleaning rigs, air conditioning, heating, boilers, refrigerating, electronic monitoring, water, loading, unloading, lighting, power, sanitation, waste removal, entertainment, communications, computers, recreational, mainten ance, truck or car repair and all other equipment of every kind), lifts, restaurant, bar and all other indoor or outdoor furniture (including tables, chairs, booths, serving stands, planters, desks, sofas, racks, shelves, lockers and cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other decorative items, furnishings, appliances,

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supplies, inventory, rugs, carpets and other floor coverings, draperies, drapery rods and brackets, awnings, venetian blinds, partitions, chandeliers and other lighting fixtures, freezers, refrigerators, walk-in coolers, signs (indoor and outdoor), computer systems, cash registers and inventory control systems, and all other apparatus, equipment, furniture, furnishings, and articles used in connection with the use or operation of the Improvements or the Premises (the property referred to in this subparagraph (5), the “Personal Property”);

(6)all of the Mortgagor’s right, title and interest in all general intangibles relating to design, development, operation, management and use of the Premises or the Improvements, all certificates of occupancy, zoning variances, building, use or other permits, approvals, authorizations and consents obtained from and all materials prepared for filing or filed with any governmental agency in connection with the development, use, operation or management of the Premises and the Improvements, all construction, service, engineering, consulting, leasing, architectural and other similar contracts concerning the design, construction, management, operation, occupancy and/or use of the Premises and Improvements, all architectura l drawings, plans, specifications, soil tests, feasibility studies, appraisals, environmental studies, engineering reports and similar materials relating to any portion of or all of the Premises and the Improvements, and all payment and performance bonds or warranties or guarantees relating to the Premises or the Improvements (the “Permits, Plans and Warranties”);

(7)the Mortgagor’s interest in and rights under any and all now or hereafter existing leases or licenses (under which the Mortgagor is landlord or licensor) and subleases (under which the Mortgagor is sublandlord), concession, management, mineral or other agreements of a similar kind that permit the use or occupancy of the Premises or the Improvements for any purpose in return for any payment, or the extraction or taking of any gas, oil, water or other minerals from the Premises in return for payment of any fee, rent or royalty (collectively, the “Third Party Leases”), and subject t o the terms of the Amended and Restated Credit Agreement, all agreements or contracts for the sale or other disposition of all or any part of the Premises or the Improvements, now or hereafter entered into by the Mortgagor, together with all charges, fees, income, issues, profits, receipts, rents, revenues or royalties payable thereunder (the “Rents”);

(8)all of the Mortgagor’s right, title and interest in and to all real estate tax refunds and all proceeds of the conversion, voluntary or involuntary, of any of the Mortgaged Property into cash or liquidated claims (“Proceeds”), including, subject to the terms of the Amended and Restated Credit Agreement, Proceeds of insurance maintained by the Mortgagor and condemnation awards, any awards that may become due by reason of the taking by eminent domain or any transfer in lieu thereof of the whole or any part of the Premises or the Improvements or any rights appurtenant thereto, and any awards for change of grade of streets, together with any and all moneys now or hereafter on deposit for the payment o f real estate taxes, assessments or common area charges levied against the Mortgaged Property, unearned premiums on policies of fire and other insurance maintained by the Mortgagor covering any interest in the Mortgaged Property; and

(9)all of the Mortgagor’s right, title and interest in and to all extensions, improvements, betterments, renewals, substitutes and replacements of and all additions and appurtenances to, the Land, the Premises, the Improvements, the Personal Property, the Permits, Plans and Warranties and the Third Party Leases, as applicable, hereinafter acquired by or released to the Mortgagor or constructed, assembled or placed by the Mortgagor on the Land, Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust,

211

conveyance, assignment or other act by the Mortgagor, all of which shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described herein.

Notwithstanding the foregoing, the Mortgaged Property shall not include (i) the Bermuda Shares (as defined in the Security Agreement), and (ii) any personal property consisting of (A) any Permits, Plans and Warranties, lease, license, contract, agreement, joint venture agreement, or other instrument to which the Mortgagor is a party and any Equity Interests in a joint venture to the extent the Mortgagor is prohibited from granting a Lien in its rights thereunder pursuant to the terms of any such Permits, Plans and Warranties, lease, license, contract, agreement, the shareholder or other similar agreement governing such joint venture, 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 prov ision or provisions) of any relevant jurisdiction or any other applicable Law or principles of equity), provided that the Proceeds from any such personal property, including Permits, Plans and Warranties, lease, license, contract, agreement, or other instrument or such Equity Interests in a joint venture shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited, and provided further that in no event shall the foregoing exclusions apply to any Subject Lease or any Third Party Lease; (B) any Excluded Equipment (as defined in the Security Agreement) owned by the Mortgagor on the date hereof or hereafter acquired; provided that all proceeds paid or payable to the Mortgagor from any sale, transfer or assignment or other voluntary or involuntary disposition of such Excluded Equipment and all rights to receive such proceeds shall be included in the Mortgaged Property to the extent not otherwise required to be paid to the holder of the Indebtedn ess secured by such Excluded Equipment; (C) any United States intent-to-use trademark application to the extent and for so long as creation by the Mortgagor of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications; (D) assets or Equity Interests acquired by the Mortgagor after the date hereof in an acquisition permitted by the Amended and Restated Credit Agreement to the extent such assets or Equity Interests are subject to Liens permitted by Section 6.02(d) of the Amended and Restated Credit Agreement and the documents applicable to such Liens prohibit creation of any other security interest on such assets, and (E) any voting Equity Interests of a Foreign Subsidiary in excess of 65% of all outstanding voting Equity Interests of such Foreign Subsidiary; and provided, further, that the term “Mortgaged Property” as used in this Mortgage shall not include any “Collateral” as defined in the Pledge Agreemen t.

TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and assigns, for the ratable benefit of the Secured Parties, forever, subject only to the Permitted Liens (as hereinafter defined) and to satisfaction and cancellation as provided in Section 3.04(a) and (b).

ARTICLE I

Representations, Warranties and Covenants of the Mortgagor

The Mortgagor agrees, covenants, represents and/or warrants as follows:

SECTION 1.01.Title.

(a) The Mortgagor has good and marketable title to an indefeasible fee estate in the Owned Land and Improvements located thereon subject to no lien, charge or encumbrance other than Liens permitted by Section 6.02 of the Amended and Restated Credit Agreement (collectively, the “Permitted Liens”). The Mortgagor is lawfully seized and possessed of and has a valid subsisting

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leasehold estate in the Leased Land and Improvements located thereon subject to no lien, charge or encumbrance other than the Permitted Liens. This Mortgage is and will remain a valid and enforceable first and prior lien on the Premises, the Improvements and the Rents subject only to the Permitted Liens. The Permitted Liens do not materially interfere with the current use, enjoyment or operation of the Mortgaged Property.

(b)Except as set forth on Schedule A hereto, there are no Third Party Leases affecting a material portion of the Mortgaged Property. Each Third Party Lease is in full force and effect, and, except as set forth on Schedule A hereto, the Mortgagor has not given, nor to the Mortgagor’s knowledge has it received, any uncured or unwaived notice of default with respect to any material obligation under any Third Party Lease. To the Mortgagor’s knowledge, each Third Party Lease is subject to no lien, charge or encumbrance other than this Mortgage and the Permitted Liens.

(c)The Mortgagor is in compliance, and shall comply with all zoning, land use and building laws, regulations, ordinances and orders of any Governmental Authority affecting the Mortgaged Property, except for any such laws, regulations, ordinances and orders of any Governmental Authority that the failure to comply with could not reasonably be expected to have a material adverse effect on the Mortgaged Property;

(d)The Mortgagor has good and lawful right and full power and authority to mortgage the Mortgaged Property and will forever warrant and defend its title to the Mortgaged Property, the rights of the Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage thereon against the claims of all persons and parties except those having rights under Permitted Liens to the extent of those rights.

(e)There will be no defenses or offsets to this Mortgage that will be asserted by the Mortgagor or its Affiliates (or any third party defense or offset now known to the Mortgagor or its Affiliates) or to any of the Obligations secured hereby for so long as any portion of the Obligations is outstanding, other than payment of the Obligations.

SECTION 1.02.Amended and Restated Credit Agreement; Certain Amounts.

(a)This Mortgage is given pursuant to the Amended and Restated Credit Agreement. To the extent there is a specific conflict between the terms hereof and the terms of the Amended and Restated Credit Agreement, the terms of the Amended and Restated Credit Agreement shall control; provided, however, that to the extent the representations and covenants contained in this Mortgage (including but not limited those set forth in Section 1.01) are more stringent or expansive than comparable representations and covenants contained in the Amended and Restated Credit Agreement, the representations and covenants contained herein shall be construed to supplement the representations and covenants in the Amended a nd Restated Credit Agreement without creating a conflict or inconsistency therewith, and the Mortgagor shall be bound to the more stringent or expansive representations and covenants hereunder.

(b)Without limiting the terms of the Amended and Restated Credit Agreement, if any remedy or right of Mortgagee pursuant hereto is acted upon by the Mortgagee or if any actions or proceedings (including any bankruptcy, insolvency or reorganization proceedings) are commenced in which the Mortgagee is obliged to defend or uphold or enforce this Mortgage or the rights of the Mortgagee hereunder, the Mortgagor will pay all reasonable sums, including reasonable attorneys’ fees and disbursements, incurred by the Mortgagee related to the exercise of any remedy or right of the Mortgagee pursuant hereto or for the reasonable expense of any such action or proceeding together with all statutory or other costs, disb ursements and allowances, interest thereon from the date of demand for

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payment thereof at the rate specified in clause (c) of Section 2.13 of the Amended and Restated Credit Agreement (the “Default Interest Rate”), and such sums and the interest thereon shall, to the extent permissible by law, be a lien on the Mortgaged Property prior to any right, title to, interest in or claim upon the Mortgaged Property attaching or accruing subsequent to the recording of this Mortgage and shall be secured by this Mortgage to the extent permitted by law. Any payment of amounts due under this Mortgage not made on or before the due date for such payments shall accrue interest daily without notice from the due date until paid at the Default Interest Rate, and such interest at the Default Interest Rate shall be due upon demand by the Mortgagee.

SECTION 1.03. Payment of Taxes, Liens and Charges. In the event of the passage of any state, Federal, municipal or other governmental law, order, rule or regulation subsequent to the date hereof (i) deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or in any manner changing or modifying the laws now in force governing the taxation of this Mortgage or debts secured by mortgages or deeds of trust (other than laws governing income, franchise and similar taxes generally) or the manner of collecting taxes thereon and (ii) imposing a tax to be paid by the Mortgagee, either directly or indirectly, on this Mortgage or any of the Loan Documents or to require an amount of taxes to be withheld or deducted therefrom, the Mortgagor will promptly notify the Mortgagee of such event. In such event and to the ext ent permitted by law, and without limiting the terms of the Amended and Restated Credit Agreement, the Mortgagor shall (i) agree to enter into such further instruments as may be reasonably necessary or desirable to obligate the Mortgagor to make any applicable additional payments and (ii) make such additional payments.

SECTION 1.04. Insurance. The Mortgagor will keep or cause to be kept the Improvements and the Personal Property insured against such risks, and in the manner, required by Section 5.07 of the Amended and Restated Credit Agreement.

SECTION 1.05.Assignment of Leases and Rents.

(a)The Mortgagor hereby irrevocably and absolutely grants, transfers and assigns all of its right, title and interest in all Third Party Leases, together with any and all extensions and renewals thereof for purposes of securing and discharging the performance by the Mortgagor of the Obligations. Except to the extent permitted by the Amended and Restated Credit Agreement, the Mortgagor has not assigned or executed any assignment of, and will not assign or execute any assignment of, any other Third Party Lease or their respective Rents to anyone other than the Mortgagee.

(b)At the Mortgagor’s request, the Mortgagee shall enter into a Subordination, Nondisturbance and Attornment Agreement with respect to all Third Party Leases entered into after the date hereof, and shall use commercially reasonable efforts to require that such agreement be substantially as set forth in Exhibit D hereto.

(c) Subject to Section 1.05(d), the Mortgagor has assigned and transferred to the Mortgagee all of the Mortgagor’s right, title and interest in and to the Rents now or hereafter arising from each Third Party Lease heretofore or hereafter made or agreed to by Mortgagor, it being intended that this assignment establish, subject to Section 1.05(d), an absolute transfer and assignment of all Rents and all Third Party Leases to the Mortgagee and not merely to grant a security interest therein. Subject to Section 1.05(d), the Mortgagee may in the Mortgagor’s name and stead (with or without first taking possession of any of the Mortgaged Property personally or by receiver as provided herein) operate the Mortgaged Property and rent, lease or let all or any portion of any of the Mortgaged Property to any party or parties at such rental and upon such ter ms as the Mortgagee shall, in its reasonable discretion, determine, and may collect and have the benefit of all of said Rents arising from or accruing at any time thereafter or that may thereafter become due under any Third Party Lease.

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(d)So long as an Event of Default shall not have occurred and be continuing, and subject to the Mortgagor’s compliance with the provisions of Section 5.14 of the Amended and Restated Credit Agreement, the Mortgagee will not exercise any of its rights under Section 1.05(c), and the Mortgagor shall receive and collect the Rents accruing under any Lease; but after the occurrence and during the continuance of any Triggering Event, the Mortgagee may, at its option, receive and collect all Rents and, from and after the occurrence and during the continuance of an Event of Default, enter upon the Premises and Improvements through its officers, agents, employees or attorneys for such purpose and for the operation and maintenance thereof. The Mortgagor hereby irrevocably authorizes and directs each tenant, if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to rely upon any notice of a claimed Triggering Event or an Event of Default sent by the Mortgagee to any such tenant or any of such tenant’s successors in interest, and thereafter to pay Rents to the Mortgagee without any obligation or right to inquire as to whether a Triggering Event or an Event of Default actually exists and even if some notice to the contrary is received from the Mortgagor, who shall have no right or claim against any such tenant or successor in interest for any such Rents so paid to the Mortgagee. Each tenant or any of such tenant’s successors in interest from whom the Mortgagee or any officer, agent, attorney or employee of the Mortgagee shall have collected any Rents, shall be authorized to pay Rents to the Mortgagor only after such tenant or any of their successors in interest shall have received written notice from the Mortgagee that the Triggering Event or Event of Default is no longer continuing, unless and until a further notice of a Triggering Event or Event of Default is given by the Mortgagee to such tenant or any of its successors in interest.

(e)The Mortgagee will not become a mortgagee in possession so long as it does not enter or take actual possession of the Mortgaged Property. In addition, the Mortgagee shall not be responsible or liable for performing any of the obligations of the tenant under any Subject Lease, or of the landlord under any Third Party Lease, for any waste by any tenant, or others, for any dangerous or defective conditions of any of the Mortgaged Property, for negligence in the management, upkeep, repair or control of any of the Mortgaged Property or any other act or omission by any other person.

(f) At any time after the occurrence and during the continuance of an Event of Default and no more than once annually otherwise, Mortgagor shall furnish to the Mortgagee, within thirty (30) days after a request by the Mortgagee to do so, a written statement containing the names of all tenants, subtenants and concessionaires of the Premises or the Improvements, the terms (i.e., expiration dates) of any Lease, the space occupied and the rentals or license fees payable thereunder.

SECTION 1.06. Restrictions on Transfers and Encumbrances. Except as permitted by the Amended and Restated Credit Agreement, the Mortgagor shall not directly or indirectly sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge, encumber or otherwise transfer, create, consent to or suffer the creation of any lien, charge or any form of encumbrance upon any interest in or any part of the Mortgaged Property, or be divested of its title to the Mortgaged Property or any interest therein in any manner or way, whether voluntarily or involuntarily (other than resulting from a condemnation), or engage in any common, cooperative, joint, time-sharing or other congregate ownership of all or part thereof; provided, however, that the Mortgagor may in the ordinary course of business within reasonable commercial standards, enter into easement or covena nt agreements that relate to and/or benefit the operation of the Mortgaged Property and that do not materially adversely affect the use and operation of the same (including customary utility easements that service the Mortgaged Property, which are permitted).

SECTION 1.07. Security Agreement. This Mortgage is both a mortgage of real property and a grant of a security interest in personal property, and shall constitute and serve as a “Security Agreement” within the meaning of the uniform commercial code as adopted in the state

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wherein the Premises are located (the “UCC”). The Mortgagor has hereby granted unto the Mortgagee a security interest in and to all the Mortgaged Property described in this Mortgage that is not real property, and simultaneously with the recording of this Mortgage, the Mortgagor has filed or will file UCC financing statements, and will file continuation statements prior to the lapse thereof, at the appropriate offices in the State in which the Premises are located (or in such other jurisdictions as reasonably requested by the Collateral Agent) to perfect the security interest granted by this Mortgage in all the Mortgaged Property that is not real property. Without limiting the foregoing, the Mortgagor hereby designates the Collateral Agent as the Mortgagor’s true and lawful attorney, exercisable by the Collateral Agent 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 or other documents as it determines reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by the Mortgagor, without the signature of the Mortgagor (the Mortgagor hereby appointing the Collateral Agent as the Mortgagor’s attorney to sign the Mortgagor’s name to any such instrument or document, whether or not an Event of Default exists), and naming the Mortgagor as debtor and the Collateral Agent as secured party. Any such Financing Statement may indicate the collateral as “all assets” of the Mortgagor, “all personal property” of the Mortgagor 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. The Mortgagee shall have all rights with respect to the part of the Mortgaged Property that is the subject of a security interest afforded by the UCC in addition to, but not in limitation of, the other rights afforded the Mortgagee hereunder and under the Security Agreement.

SECTION 1.08. Filing and Recording. The Mortgagor will cause this Mortgage, any other security instrument creating a security interest in or evidencing the lien hereof upon the Mortgaged Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the security interest of the Mortgagee in, the Mortgaged Property. The Mortgagor will pay all filing, registration or recording fees, and all reasonable expenses incidental to the execution and acknowledgment of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property, and any instrument of further assurance and all Federal, state, county and municipal recording, documentary or intangible taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery and recording of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property or any instrument of further assurance.

SECTION 1.09. Additions to Mortgaged Property. Except to the extent specifically excluded from the Mortgaged Property pursuant to the Granting Clauses hereof, all right, title and interest of the Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by or released to the Mortgagor or constructed, assembled or placed by the Mortgagor upon the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case without any further mortgage, conveyance, assignment or other act by the Mortgagor, shall become subject to the lien and security interest of this Mortgage as fully and com pletely and with the same effect as though now owned by the Mortgagor and specifically described in the grant of the Mortgaged Property above, but at any and all times the Mortgagor will execute and deliver to the Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as the Mortgagee may reasonably require for the purpose of expressly and specifically subjecting the same to the lien and security interest of this Mortgage.

SECTION 1.10.No Claims Against Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by the Mortgagee, express or implied, for the performance of any

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labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, nor as giving the Mortgagor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Mortgagee in respect thereof.

SECTION 1.11. Fixture Filing. Certain of the Mortgaged Property includes items of personal property which are or are to become “fixtures” (as that term is defined in the UCC) on the Land. To the extent permitted under applicable law, the filing hereof in the real estate records of the county in which such Mortgaged Property is located shall also operate from the date of such recording as a financing statement filed as a fixture filing with respect to such Mortgaged Property that is or may become fixtures, and the following information is applicable for the purpose of such fixture filing, to wit:

Name and Address of the debtor: The Mortgagor having the address described in the Preamble hereof. The Mortgagor is a []organized under the laws of the State of []whose Organization Number is [], and whose Taxpayer Identification Number is 11.	Name and Address of the secured party: The Mortgagee having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained.
This Financing Statement covers the following types or items of property:
The Mortgaged Property.
This instrument covers goods or items of personal property which are or are to become fixtures upon the property.
The Mortgagor is the record owner of the Owned Land and the record owner(s) of the Leased Land are identified on Exhibit B-1 annexed hereto and incorporated herein.

In addition, the Mortgagor hereby authorizes the Mortgagee to file appropriate financing and continuation statements under the UCC in effect in the jurisdiction in which the Mortgaged Property is located or where the Mortgagor is located/organized or any other applicable jurisdiction as may be required by law in order to create, establish, preserve and protect the liens and security interests intended to be granted to the Mortgagee pursuant to this Mortgage in the Mortgaged Property.

SECTION 1.12. Estoppel Certificates. The Mortgagor, within thirty (30) Business Days upon request by mail, shall furnish the Mortgagee a written statement, duly acknowledged, of the amount of the Obligations then secured by this Mortgage and whether any offsets or defenses exist against any such Obligations.

ARTICLE H

Defaults and Remedies

SECTION 2.01. Demand for Payment. If an Event of Default shall occur and be continuing, then, upon written demand of the Mortgagee (except with respect to an Event of Default under Section 7.01(h) or (i) of the Amended and Restated Credit Agreement, in which case such amounts shall be automatically due and payable in full without written demand), the Mortgagor will pay to the Mortgagee all amounts due hereunder and such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable attorneys’ fees, disbursements and expenses incurred by the

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Mortgagee and the Mortgagee shall be entitled and empowered to institute an action or proceedings at law or in equity for the collection of the sums so due and unpaid, to prosecute any such action or proceedings to judgment or final decree, to enforce any such judgment or final decree against the Mortgagor and to collect, in any manner provided by law, all moneys adjudged or decreed to be payable.

SECTION 2.02. Rights to Take Possession, Operate and Apply Revenues.

(a)If an Event of Default shall occur and be continuing, the Mortgagor shall, upon demand of the Mortgagee, forthwith surrender to the Mortgagee actual possession of the Mortgaged Property and, if and to the extent not prohibited by applicable law, the Mortgagee itself, or by such officers or agents as it may appoint, may then enter and take possession of all or any portion of the Mortgaged Property without the appointment of a receiver or an application therefor, exclude the Mortgagor and its agents and employees wholly therefrom, and have access to the books, papers and accounts of the Mortgagor relating to the Mortgaged Property.

(b)If the Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after such demand by the Mortgagee, the Mortgagee may to the extent not prohibited by applicable law, obtain a judgment or decree conferring upon the Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession of the Mortgaged Property to the Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. The Mortgagor will pay to the Mortgagee, upon demand, all reasonable expenses of obtaining such judgment or decree, including reasonable compensation to the Mortgagee’s attorneys and agents with interest thereon at the Default Interest Rate; and all such expenses and compensation shall, until paid, be secured by this Mortgage.

(c)Upon every such entry or taking of possession, the Mortgagee may, to the extent not prohibited by applicable law, hold, store, use, operate, manage and control the Mortgaged Property, conduct the business thereof and, from time to time, (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii) purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor to the same extent as the Mortgagor could in its own name or otherwise with respect to the same, or (v) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted the Mortgagee, all as may from time to time be directed or determined by the Mortgagee to be in its best interest and the Mortgagor hereby appoints the Mortgagee as its true and lawful attorney-in-fact and agent, for the Mortgagor and in its name, place and stead, in any and all capacities, to perform any of the foregoing acts. The Mortgagee may collect and receive all the Rents, issues, profits and revenues from the Mortgaged Property, including those past due as well as those accruing thereafter, and, after deducting (i) all expenses of taking, holding, managing and operating the Mortgaged Property (including compensation for the services of all persons employed for such purposes), (ii) the costs of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges as the Mortgagee may at its option pay, (v) other proper charges upon the Mortgaged Property or any part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of the Mortgagee, the Mortgagee shall apply the remainder of the moneys and proceeds so received first to the payment to the Mortgagee for the satisfaction of the Obligations in accordance with Section 7.03 of the Amended and Restated Credit Agreement and second, if there is any surplus, to the Mortgagor, subject to the entitlement of others thereto under applicable law.

(d)Whenever, before any sale of the Mortgaged Property under Section 2.05, all Obligations secured hereby that are then due shall have been paid and all Events of Default waived, the

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Mortgagee will surrender possession of the Mortgaged Property back to the Mortgagor, its successors or assigns. The same right of taking possession shall, however, arise again if any subsequent Event of Default shall occur and be continuing.

SECTION 2.03. Right to Cure Mortgagor’s Failure to Perform. If an Event of Default occurs and is continuing, the Mortgagee may pay, perform or observe the term, covenant or condition the failure of which to observe resulted in such Event of Default, and all payments made or costs or expenses incurred by the Mortgagee in connection therewith shall be secured hereby and shall be, without demand, promptly repaid by the Mortgagor to the Mortgagee with interest thereon at the Default Interest Rate. The Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or the Improvements or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without having any obligation to so perform or observe and without thereby becoming liable to the Mortgagor, to any person in possession holding u nder the Mortgagor or to any other person.

SECTION 2.04. Right to a Receiver. If an Event of Default shall occur and be continuing, the Mortgagee, upon application to a court of competent jurisdiction, shall be entitled as a matter of right to the appointment of a receiver to take possession of and to operate the Mortgaged Property and to collect and apply the Rents. The Mortgagee shall provide to the Mortgagor written notice of such application prior to the appointment of a receiver. The receiver shall have all of the rights and powers permitted to a receiver under the laws of the state wherein the Mortgaged Property is located. The Mortgagor shall pay to the Mortgagee upon demand all reasonable expenses, including receiver’s fees, reasonable attorney’s fees and disbursements, costs and agent’s compensation incurred pursuant to the provisions of this Section 2.04; and all such expens es shall be secured by this Mortgage and shall be, without demand, promptly repaid by the Mortgagor to the Mortgagee with interest thereon at the Default Interest Rate.

SECTION 2.05. Foreclosure and Sale.

(a)If an Event of Default shall occur and be continuing, the Mortgagee may elect to sell the Mortgaged Property or any part of the Mortgaged Property by exercise of the power of foreclosure or of sale granted to the Mortgagee by applicable law or this Mortgage. Alternatively, the Mortgagee may commence a civil action to foreclose this Mortgage, or it may proceed and sell the Mortgaged Property to satisfy any Obligation secured hereby. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property, may sell all or such parts of the Mortgaged Property as may be chosen by the Mortgagee at the time and place of sale fixed by it in a notice of sale, either as a whole or in separa te lots, parcels or items as the Mortgagee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property may postpone any foreclosure or other sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale. Without further notice, the Mortgagee or an officer appointed to sell the Mortgaged Property may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Any person, including the Mortgagor or the Mortgagee or any designee or affiliate thereof, may purchase at such sale.

(b)The Mortgaged Property may be sold subject to unpaid taxes and Permitted Liens, and, after deducting all costs, fees and expenses of the Mortgagee (including costs of evidence of title in connection with the sale), the Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 2.07.

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(c)Any foreclosure or other sale of less than the whole of the Mortgaged Property or any defective or irregular sale made hereunder shall not exhaust the power of foreclosure or of sale provided for herein; and subsequent sales may be made hereunder until the Obligations have been satisfied, or the entirety of the Mortgaged Property has been sold.

(d)If an Event of Default shall occur and be continuing, the Mortgagee may instead of, or in addition to, exercising the rights described in Section 2.05(a) above and either with or without entry or taking possession as herein permitted, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy (i) to specifically enforce payment of some or all of the Obligations, or the performance of any term, covenant, condition or agreement of this Mortgage or any other Loan Document or any other right, or (ii) to pursue any other remedy available to the Mortgagee, all as the Mortgagee shall determine most effectual for such purposes.

(e) In the event all or part of the Mortgaged Property is included at any foreclosure sale conducted pursuant hereto, a single total price for the Mortgaged Property, or such part thereof as is sold, may be accepted by Mortgagee with no obligation to distinguish between the application of such proceeds amongst the property comprising the Mortgaged Property.

SECTION 2.06. Other Remedies.

(a)In case an Event of Default shall occur and be continuing, the Mortgagee may also exercise, to the extent not prohibited by law, any or all of the remedies available to a secured party under the UCC of the State wherein the Mortgaged Property is located. Without limiting the rights and remedies of the Mortgagee, the Mortgagee may sell any part of the Mortgaged Property consisting of Personal Property in a single lot with any other Mortgaged Property of any type, whether real or personal.

(b)In connection with a sale of the Mortgaged Property or any Personal Property and the application of the proceeds of sale as provided in Section 2.07, the Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the Obligations, plus all other charges, payments and costs due under this, Mortgage, and to recover a deficiency judgment for any portion of the aggregate principal amount of the Obligations remaining unpaid, with interest.

SECTION 2.07. Application of Sale Proceeds and Rents. After any foreclosure sale of all or any of the Mortgaged Property, the Mortgagee shall receive the proceeds of sale, no purchaser shall be required to see to the application of the proceeds and the Mortgagee shall apply the proceeds of the sale together with any Rents that may have been collected and any other sums that then may be held by the Mortgagee under this Mortgage in accordance with the provisions of Section 7.03 of the Amended and Restated Credit Agreement. The Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of the Mortgaged Property by the Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Mortgagee or of the offic er making the sale shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged Property 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 Mortgagee or such officer or be answerable in any way for the misapplication thereof.

SECTION 2.08. Mortgagor as Tenant Holding Over. If the Mortgagor remains in possession of any of the Mortgaged Property after any foreclosure sale by the Mortgagee, at the Mortgagee’s election the Mortgagor shall be deemed a tenant holding over and shall forthwith surrender possession to the purchaser or purchasers at such sale or be summarily dispossessed or evicted according to provisions of law applicable to tenants holding over.

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SECTION 2.09. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. The Mortgagor waives, to the extent not prohibited by law, (i) the benefit of all laws now existing or that hereafter may be enacted providing for any appraisement of any portion of the Mortgaged Property, (ii) the benefit of all laws now existing or that may be hereafter enacted in any way extending the time for the enforcement or the collection of amounts due under any of the Obligations or creating or extending a period of redemption from any sale made in collecting said debt or any other amounts due to the Mortgagee, (iii) any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, homestead exemption, valuation, stay, statute of limitations, extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or as a single parcel in the event of foreclosure or notice of deficiency, and (iv) all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of or each of the Obligations and marshaling in the event of foreclosure of this Mortgage.

SECTION 2.10. Discontinuance of Proceedings. In case the Mortgagee shall proceed to enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall be discontinued or abandoned for any reason, or shall be determined adversely to the Mortgagee, then and in every such case the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Mortgagee shall continue as if no such proceeding had been taken.

SECTION 2.11. Suits To Protect the Mortgaged Property. After the occurrence and during the continuance of an Event of Default, the Mortgagee shall have power (a) to institute and maintain suits and proceedings to prevent any impairment of the Mortgaged Property by any acts that may be unlawful or in violation of this Mortgage, (b) to preserve or protect its interest in the Mortgaged Property and in the Rents arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of or compliance with such enactment, rule or order would impair the security or be prejudicial to the interest of the Mortgagee hereunder.

SECTION 2.12. Filing Proofs of Claim. In case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Mortgagor, the Mortgagee shall, to the extent permitted by law, be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Mortgagee allowed in such proceedings for the Obligations secured by this Mortgage at the date of the institution of such proceedings and for any interest accrued, late charges and additional interest or other amounts due or that may become due and payable hereunder after such date.

SECTION 2.13. Possession by the Mortgagee. Notwithstanding the appointment of any receiver, liquidator or trustee of the Mortgagor, any of its property or the Mortgaged Property, the Mortgagee shall be entitled, to the extent not prohibited by law, to remain in possession and control of all parts of the Mortgaged Property now or hereafter granted under this Mortgage to the Mortgagee in accordance with the terms hereof and applicable law.

SECTION 2.14. Waiver.

(a) No delay or failure by the Mortgagee to exercise any right, power or remedy accruing upon any breach or Event of Default shall exhaust or impair any such right, power or remedy or be construed to be a waiver of any such breach or Event of Default or acquiescence therein; and every right, power and remedy given by this Mortgage to the Mortgagee may be exercised from time to time and as often as may be deemed expedient by the Mortgagee. No consent or waiver by the Mortgagee to

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or of any breach or default by the Mortgagor in the performance of the Obligations shall be deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the performance of the same or any other Obligations by Mortgagor hereunder. No failure on the part of the Mortgagee to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall constitute a waiver by the Mortgagee of its rights hereunder or impair any rights, powers or remedies consequent on any future Event of Default by the Mortgagor.

(b) Even if the Mortgagee (i) grants some forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security for the payment of any sum secured hereby, (iii) waives or does not exercise some right granted herein or under the Loan Documents, (iv) releases a part of the Mortgaged Property from this Mortgage, (v) agrees to change some of the terms, covenants, conditions or agreements of any of the Loan Documents, (vi) consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the granting of an easement or other right affecting the Premises or (viii) makes or consents to an agreement subordinating the Mortgagee’s lien on the Mortgaged Property hereunder; no such act or omission shall preclude the Mortgagee from exercising any other right, power or privilege herein granted or intended to be granted in the event of any Event of Default then made or of any subsequent Event of Default; nor, except as otherwise expressly provided in an instrument executed by the Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or part of the Mortgaged Property, the Mortgagee is hereby authorized and empowered to deal with any vendee or transferee with reference to the Mortgaged Property secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings.

SECTION 2.15. Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Mortgagee by this Mortgage is intended to be exclusive of any other right, power or remedy, and each and every such right, power and remedy shall be cumulative and concurrent and in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute.

ARTICLE In

Miscellaneous

SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions contained in this Mortgage shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Mortgage, and this Mortgage shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein.

SECTION 3.02. Notices. All notices and communications hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Amended and Restated Credit Agreement.

SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms, provisions and conditions herein shall run with the Premises and the Improvements and shall apply to, bind and inure to, the benefit of the permitted successors and assigns of the Mortgagor and the permitted successors and assigns of the Mortgagee.

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SECTION 3.04.Satisfaction and Cancellation.

(a)The conveyance to the Mortgagee of the Mortgaged Property as security, created and consummated by this Mortgage shall terminate when all the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of the Amended and Restated Credit Agreement, this Mortgage, the other Loan Documents or any other agreements relating to Obligations secured hereby, survive the termination of the Amended and Restated Credit Agreement, this Mortgage, the other Loan Documents or such other agreements), the Lenders have no further commitment to lend, the L/C Exposure and any Obligations in respect of Bank Products or Cash Management Services have been reduced to zero or collateralized to the satisfaction of the Administrative Agent and/or the Issuing Bank has no further commitment to issue Letters of Credit under the Amended and Restated Credit Agreement, at which time the Collateral Agent shall deliver to the Mortgagor such documents which the Mortgagor shall reasonably request to evidence the termination of this Mortgage. Any execution and delivery of termination documents pursuant to this Section 3.04 shall be without recourse to or warranty by the Collateral Agent.

(b)Upon a sale or financing by the Mortgagor of all or any portion of the Mortgaged Property to any Person which is not a Loan Party that is permitted under the Amended and Restated Credit Agreement or otherwise consented to by the Required Lenders and the application of the Net Proceeds of such sale or financing in accordance with the Amended and Restated Credit Agreement, the lien of this Mortgage shall be automatically released from the applicable portion of the Mortgaged Property. The Mortgagor shall give the Mortgagee notice of any sale or financing of the Mortgaged Property as required by the Amended and Restated Credit Agreement.

(c) In connection with any termination or release (i) pursuant to paragraph (a) above, this Mortgage shall be canceled of record, and (ii) pursuant to paragraph (b) above, this Mortgage shall be released or partially released, as appropriate, of record as to such Mortgaged Property, in each case at the request and at the expense of the Mortgagor. The Mortgagee shall execute any documents reasonably requested by the Mortgagor to accomplish the foregoing or to accomplish any release contemplated by paragraph (b) and the Mortgagor will pay all costs and expenses, including reasonable attorneys’ fees, disbursements and other charges, incurred by the Mortgagee in connection with the preparation and execution of such documents.

SECTION 3.05. Definitions. As used in this Mortgage, the singular shall include the plural as the context requires and the following words and phrases shall have the following meanings: (a) “including” shall mean “including but not limited to”; (b) “provisions” shall mean “provisions, terms, covenants and/or conditions”; (c) “lien” shall mean “lien, charge, encumbrance, security interest, mortgage or deed of trust”; (d) “obligation” shall mean “obligation, duty, covenant and/or condition”; and (e) “any of the Mortgaged Property” shall mean “the Mortgaged Property or any part thereof or interest therein”. Any act that the Mortgagee is permitted to perform hereunder may be performed by the Mortgagee or any person or entity designated by the Mortgagee. Each appointment of the Mortgagee as attorney-in-fact for the Mortgagor under this Mortgage is irrevocable, with power of substitution and coupled with an interest. Except as otherwise provided herein, the Mortgagee has the right to refuse to grant its consent, approval or acceptance or to indicate its satisfaction, in its sole discretion, whenever such consent, approval, acceptance or satisfaction is required hereunder.

SECTION 3.06. Multisite Real Estate Transaction. The Mortgagor acknowledges that this Mortgage is one of a number of Other Mortgages and Security Documents that secure the Obligations. The Mortgagor agrees that the lien of this Mortgage shall be absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of the Mortgagee and without limiting the generality of the foregoing, the lien hereof shall not be impaired by any acceptance by the Mortgagee of any security for or guarantees of any of the Obligations hereby secured, or by any failure, neglect or omission on the part of the Mortgagee to realize upon or protect any

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Obligation or indebtedness hereby secured or any collateral security therefor including the Other Mortgages and other Security Documents. The lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or disposition of any of the Obligations secured or of any of the collateral security therefor, including the Other Mortgages and other Security Documents or of any guarantee thereof, and the Mortgagee may at its discretion foreclose, exercise any power of sale, or exercise any other remedy available to it under any or all of the Other Mortgages and other Security Documents without first exercising or enforcing any of its rights and remedies hereunder. Such exercise of the Mortgagee’s rights and remedies under any or all o f the Other Mortgages and other Security Documents shall not in any manner impair the indebtedness hereby secured or the lien of this Mortgage and any exercise of the rights or remedies of the Mortgagee hereunder shall not impair the lien of any of the Other Mortgages and other Security Documents or any the Mortgagee’s rights and remedies thereunder. The Mortgagor specifically consents and agrees that the Mortgagee may exercise its rights and remedies hereunder and under the Other Mortgages and other Security Documents separately or concurrently and in any order that it may deem appropriate and waives any rights of subrogation.

SECTION 3.07. Amendments; Waivers; Etc. This Mortgage cannot be modified, changed or discharged except by an agreement in writing, duly acknowledged in form for recording, signed by the Mortgagor and the Mortgagee with the consent of the Secured Parties to the extent provided in the Amended and Restated Credit Agreement. For purposes hereof, a statement by the Mortgagee in any modification or supplement to this Mortgage to the effect that such modification or supplement has been consented to by the Secured Parties as provided in Section 9.02 of the Amended and Restated Credit Agreement shall be conclusive evidence of such consent and it shall not be necessary for a copy of such consent to be recorded with such modification or supplement as a condition to such modification or supplement being recorded in the appropriate real estate records.

SECHON 3.08. Severability. If any term or provision of this Mortgage or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Mortgage, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Mortgage shall be valid and enforceable to the maximum extent permitted by law. [FOR USE IN NY AND FOR MORTGAGES ENCUMBERING PRINCIPAL PROPERTIES ONLY - This Mortgage secures only a portion of the indebtedness owing or which may become owing by the Mortgagor to the Mortgagee and the other Secured Parties. The parties agree that any payments or repayments of such indebtedness shall be deemed to apply first to the portion of the indebtedness that is not secured hereby, it being the parties’ intent that the portion of the indebtedness last remaining unpaid shall be deemed secured hereby.] [FOR USE IN ALL MORTGAGES NOT COVERED BY THE FOREGOING - Notwithstanding any payment of any part of the Obligations (whether voluntary or under foreclosure or other enforcement action or procedure or otherwise) the lien of this Mortgage shall continue to encumber all of the Mortgaged Property, it being the parties’ intent that the portion of the indebtedness last remaining unpaid shall be deemed secured hereby.]

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ARTICLE IV

Subject Leases

SEC I  ION 4.01.The Subject Leases.

(a)Each Subject Lease is in full force and effect in accordance with the terms thereof, and has not been modified except as expressly set forth in that certain letter agreement dated as of the date hereof given by, among others, the Mortgagor for the benefit of the Collateral Agent and the other Secured Parties. To the best knowledge of the Mortgagor, no material default exists, and no event or act has occurred and no condition exists which with the passage of time or the giving of notice or both would constitute a material default, under any Subject Lease. The execution and delivery of this Mortgage by the Mortgagor (i) does not require the consent or approval of the landlord under any Subject Lease and (ii) will not violate or result in a default under any Subject Lease.

(b)The Mortgagor shall at all times promptly and faithfully keep and perform in all material respects, or cause to be kept and performed in all material respects, all the covenants and conditions contained in each Subject Lease by the lessee therein to be kept and performed by it and shall in all material respects conform to and comply with the terms and conditions of each Subject Lease and the Mortgagor further covenants that it will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will materially impair the security of this Mortgage or will be reason for declaring a default under any Subject Lease.

(c)The Mortgagor shall furnish to the Mortgagee promptly upon the Mortgagee’s reasonable request any and all information concerning the performance by the Mortgagor and the landlord under any Subject Lease of the covenants of any Subject Lease, including, without limitation, all notices of default.

(d)After the occurrence and during the continuance of an Event of Default, the Mortgagor hereby agrees that the Mortgagee may (but shall not be obligated to) take any such action as the Mortgagee deems necessary or desirable to cure, in whole or in part, any failure of compliance by the Mortgagor under any Subject Lease; and upon the receipt by the Mortgagee from the Mortgagor or the landlord under any Subject Lease of any written notice of default by the Mortgagor as the lessee thereunder, the Mortgagor may rely thereon, and such notice shall constitute full authority and protection to the Mortgagee for any action taken or omitted to be taken in good faith reliance thereon. All sums, including reasonable att orneys’ fees, so expended by the Mortgagee to cure or prevent any such default, or expended to sustain the lien of this Mortgage or its priority, shall be deemed secured by this Mortgage and shall be paid by the Mortgagor on demand, with interest accruing thereon at the Default Interest Rate. Subject to the provisions set forth in the first sentence of this Section 4.01(d), the Mortgagor hereby expressly grants to the Mortgagee (subject to the terms of each Subject Lease), and agrees that the Mortgagee shall have, the absolute and immediate right to enter in and upon the Leased Land and the Improvements or any part thereof to such extent and as often as the Mortgagee, in its discretion, deems necessary or desirable in order to cure any such default or alleged default by the Mortgagor.

(e)Upon the occurrence and during the continuance of any Event of Default hereunder, the Mortgagor hereby agrees that all lessee’s options, elections and approval rights, together with the right of termination, cancellation, modification, change, supplement, alteration or amendment of each Subject Lease, all of which have been assigned for collateral purposes to the Mortgagee, shall automatically vest exclusively in and be exercisable solely by the Mortgagee.

(f)So long as this Mortgage is in effect, there shall be no merger of any Subject Lease or any interest therein, or of the leasehold estate created thereby, with the fee estate in the Land or any portion thereof by reason of the fact that such Subject Lease or such interest therein may be held directly or indirectly by or for the account of any person who shall hold the landlord’s leasehold estate or fee estate in the Land or any portion thereof or any interest of the landlord under such Subject Lease. In case the Mortgagor acquires fee title to the Land, this Mortgage shall attac h to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further

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assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. The Mortgagor shall notify the Mortgagee of any such acquisition and, on written request by the Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the reasonable opinion of the Mortgagee be necessary or appropriate to effect the intent and meaning hereof and shall deliver to the Mortgagee an endorsement to the Mortgagee’s loan title insurance policy insuring that such fee title or other estate is subject to the lien of this Mortgage.

(g)In the event that the Mortgagor as lessee under any Subject Lease exercises any option or right to purchase any parcel of land which option or right is granted under said Subject Lease, then upon the vesting of the title of such parcel in the Mortgagor, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage.

(h)If any action or proceeding shall be instituted to evict the Mortgagor or to recover possession of any leasehold parcel or any part thereof or interest therein or any action or proceeding otherwise affecting any Subject Lease or this Mortgage shall be instituted, then the Mortgagor will, within fifteen (15) days of service thereof on or to the Mortgagor, deliver to the Mortgagee any notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding.

(i)The lien of this Mortgage shall attach to all of the Mortgagor’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. 365(h), as the same may hereafter be amended (the “Bankruptcy Code”), including, without limitation, all of the Mortgagor’s rights to remain in possession of each leasehold parcel, provided, however, that the Mortgagee shall have no right to exercise such rights and remedies unless an Event of Default has occurred and is continuing. The Mortgagor shall, after obtaining knowledge thereof, promp tly notify the Mortgagee of any filing by or against the lessor or fee owner of any leasehold parcel of a petition under the Bankruptcy Code. At the Mortgagee’s request, the Mortgagor shall promptly deliver to the Mortgagee, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by the Mortgagor in connection with any such petition and any proceedings relating thereto.

(j)If there shall be filed by or against the Mortgagor a petition under the Bankruptcy Code and the Mortgagor, as lessee under any Subject Lease, shall determine to reject such Subject Lease pursuant to Section 365(a) of the Bankruptcy Code, then the Mortgagor shall give the Mortgagee not less than twenty days’ prior notice of the date on which the Mortgagor shall apply to the Bankruptcy Court for authority to reject such Subject Lease. The Mortgagee shall have the right, but not the obligation, to serve upon the Mortgagor within such twenty (20) day period a notice stating that the Mortgagee d emands that the Mortgagor assume and assign such Subject Lease to the Mortgagee pursuant to Section 365 of the Bankruptcy Code. If the Mortgagee shall serve upon the Mortgagor the notice described in the preceding sentence, the Mortgagor shall not seek to reject such Subject Lease and shall comply with the demand provided for in the preceding sentence.

(k) Effective upon the entry of an order for relief with respect to the Mortgagor under the Bankruptcy Code, the Mortgagor hereby assigns and transfers to the Mortgagee a non-exclusive right to apply to the Bankruptcy Court under Subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which any Subject Lease may be rejected or assumed.

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(I) No release or forbearance of any of the Mortgagor’s obligations under any Subject Lease, pursuant to the terms thereof or otherwise, shall release the Mortgagor from any of its obligations under this Mortgage.

ARTICLE V

Particular Provisions

This Mortgage is subject to the following provisions relating to the particular laws of the State wherein the Premises are located:

SECTION 5.01. Applicable Law, Certain Particular Provisions. This Mortgage shall be governed by and construed in accordance with the internal law of the State of New York; provided, however, that the provisions of this Mortgage relating to the creation, perfection and enforcement of the lien and security interest created by this Mortgage in respect of the Mortgaged Property and the exercise of each remedy provided hereby, including the power of foreclosure or power of sale procedures set forth in this Mortgage, shall be governed by and construed in accordance with the internal law of the State where the Mortgaged Property is located, and the Mortgagor and the Mortgagee agrees to submit to jurisdiction and the laying of venue for any suit on this Mortgage in such state. The terms and provisions set forth in Appendix A attached hereto are hereby inco rporated by reference as though fully set forth herein. In the event of any conflict between the terms and provisions contained in the body of this Mortgage and the terms and provisions set forth in Appendix A, the terms and provisions set forth in Appendix A shall govern and control.

SECTION 5.02. Security Agreement. It is expressly agreed that the enumeration of any specific articles of property included in the definition of Mortgaged Property shall in no way result in or be held to modify or limit the scope of any “Collateral” (as defined in the Security Agreement) for the Obligations.

[Signature Page Follows]

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IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to the Mortgagee by the Mortgagor on the date of the acknowledgment attached hereto.

[MORTGAGOR]
By:
	Name:
	Title:

228

County of                                     , State of

On December                            , 2007, before me, the undersigned officer,                               personally appeared                                                      personally known and acknowledged himself / herself to me (or proved to me on the basis of satisfactory evidence) to be the            ;                                   of                               (hereinafter, the “Corporation”) and that as such officer, being duly sworn, and being authorized to do so pursuant to its bylaws or a resolution of its board of directors, executed, subscribed and acknowledged the due execution of the foregoing instrument for the purposes therein contained, by signing the name of the Corporation by himself / herself in his / her authorized capacity as such officer as his / her free and voluntary act and deed and the free and voluntary act and deed of said Corporation.

Witness my hand and official seal.

Notary Public

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Exhibit D

to Mortgage

Exhibit A to Mortgate - Legal

Descriptions of Owned Land

Exhibit B to

Mortgae -

Subject Leases

Ex. B-1 to Mortgage

Record Owner(s) of Leased Land

Legal Descriptions of Leased Land

Exhibit D

to Mortgate

Form of Subordination, Nondisturbance
and Attornment Agreement

SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT

AGREEMENT made as of [                1 among the following parties: Bank of America, N.A., as Collateral Agent (hereinafter referred to as “Mortgagee”); [(hereinafter referred to as “Landlord”), and [                                 ](hereinafter referred to as “Tenant”).

RECITALS:

A.A syndicate of Lenders, including the Mortgagee, has made a loan to Landlord [Landlord’s parent company, which loan is guaranteed by Landlord and] secured by a mortgage (hereinafter called the “Mortgage”) covering a parcel of land [owned] [leased] by Landlord and described on Exhibit A annexed hereto and made part hereof, together with the improvements erected or to be erected thereon (said parcel of land and improvements being hereinafter called the “Shopping Center”).

B.Pursuant to a [lease] [sublease] entered into between Landlord and Tenant datedas of [                            ] as amended by [                          ] (hereinafter called t he “Lease”), a copy of which has been delivered to Mortgagee, Landlord leases to Tenant a portion of the Shopping Center, more particularly described in the Lease (hereinafter, with any and all easements, appurtenances, rights andprivileges now or hereafter belonging thereto, called the “Demised Premises”).                Terms not otherwise defined herein shall have the same meanings as are ascribed to them in the Lease.

C.A Short Form, Notice or Memorandum of the Lease is intended to be, or hasbeen, recorded in the Office of the [                                                        &nbs p;        ] of [                                                      County, [State][Commonwealth] of [                           ], in Book [                                        & nbsp;     ] at page [                                  ] of Deeds.

D.Mortgagee desires that the Lease be subordinate to the lien of the Mortgage.

E.The parties desire to effect the subordination of the Lease to the Mortgage and to provide for the nondisturbance of Tenant by the holder of the Mortgage.

This Document Prepared By:

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein, the parties hereby agree as follows:

1.Mortgagee hereby consents to and approves the Lease and the terms thereof, including the options to extend the Lease Term as set forth in the Lease, if any, and agrees that the exercise by Tenant of any of its rights, remedies and options therein shall not constitute a default under the Mortgage.

2.Tenant agrees with Mortgagee that the Lease is hereby made and shall continue hereafter to be subject and subordinate to the lien of the Mortgage, and to all modifications and extensions thereof, with the same force and effect as if the Mortgage had been executed and delivered prior to the execution and delivery of the Lease and without regard to the order of priority of recording the Mortgage and the Short, Notice or Memorandum of the Lease, subject, however, to the provisions of this Agreement.

3.Mortgagee agrees that so long as the Lease shall be in full force and effect and so long as Tenant is not in default under the Lease:

a.Tenant shall not be named or joined as a party or otherwise in any suit, action or proceeding for the foreclosure of the Mortgage or to enforce any rights under the Mortgage or the bond, note or other obligation secured thereby;

b.The possession by Tenant of the Demised Premises and Tenant’s rights thereto, and its use and enjoyment of the Common Area, shall not be disturbed, affected or impaired, nor will the Lease or the term thereof be terminated or otherwise affected, by (i) any suit, action or proceeding on the Mortgage or the bond, note or other obligation secured thereby, (ii) the foreclosure of the Mortgage, (iii) the enforcement of any rights under the Mortgage or any other documents held by the holder of the Mortgage, (iv) any judicial sale or ex ecution or other sale of the Shopping Center or any part thereof, or any deed given in lieu of foreclosure, (v) the exercise of any other rights given to any holder of the Mortgage or such other documents as a matter of law, or (vi) any default under the Mortgage or the bond, note or other obligation secured thereby;

c.All condemnation awards and insurance proceeds paid or payable with respect to any part of the Shopping Center (including the Demised Premises) and received or receivable by Mortgagee shall be applied and paid in the manner set forth in the Lease; and

d.Neither the Mortgage nor any other security instrument executed in connection therewith shall cover, or be construed as subjecting in any manner to the lien thereof, any trade fixtures, equipment, signs or other personal property at any time furnished or installed by or for Tenant or its subtenants or licensees on or in the Shopping Center, regardless of the manner of attachment.

4. If Mortgagee or any future holder of the Mortgage shall become the owner of the Shopping Center by reason of foreclosure of the Mortgage or otherwise, or if the Shopping Center shall be sold as a result of any action or proceeding to foreclose the Mortgage, or if ownership of the Shopping Center shall be transferred by deed given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity for executing a new lease, as a direct lease between Tenant and the new owner of the Shopping Center, as landlord (herein called “New Owner”), on all of the same terms, covenants and provisions of the Lease, and in such event:

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a.Tenant shall be bound to New Owner under all of the terms, covenants and provisions of the Lease for the remainder of the Lease Term (including the renewal periods, to the extent that Tenant shall elect or has elected to exercise any or all of its options to extend the Lease Term) and Tenant hereby agrees to attorn to New Owner and to recognize New Owner as “landlord” under the Lease; and

b.New Owner shall be bound to Tenant under, and shall perform all of the terms, covenants and provisions of, the Lease to be performed by the landlord thereunder for the remainder of the Lease Term (including the renewal periods to the extent that Tenant shall elect or has elected to exercise any or all of its options to extend the Lease Term), and Tenant shall, from and after the date New Owner succeeds to the interest of the landlord under the Lease, have the same remedies against New Owner for the breach of any provision of the Lease that Tenant might h ave had under the Lease against Landlord if New Owner had not succeeded to the interest of Landlord, except that New Owner shall not be (i) bound by any Fixed Annual Rent or additional rent that Tenant may have paid for more than one month in advance to any prior landlord (including Landlord); or (ii) bound by any amendment or modification of the Lease made without Mortgagee’s consent that would reduce (A) Fixed Annual Rent, (B) any other monetary obligation of Tenant under the Lease or (C) the Lease Term; or (iii) liable for any action or omission of any prior landlord (including Landlord) under the Lease; or (iv) liable for any Offsets, claims or defenses that Tenant may have against any prior landlord (including Landlord) other than as specifically set forth herein. The foregoing subdivisions (iii) and (iv) shall not be construed to relieve New Owner from the obligation to perform the covenants of the Landlord under the Lease after such succession, includi ng the obligation to cure nonmonetary defaults of Landlord that continue after such succession, if such default is curable by New Owner and if Tenant gives New Owner written notice of such default and at least the same time given by the Lease to Landlord to cure such default after New Owner becomes the owner of the Demised Premises.

5.All notices, consents, approvals or other communications given under or pursuant to this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, or by recognized overnight courier service (a) if to Mortgagee, to Bank of America, N.A., 100 Federal Street, Boston, Massachusetts 02110, Attention: Christine Hutchinson, or at such other address as Mortgagee may designate by notice to Landlord and Tenant, (b) if to Tenant, at the address of Tenant set forth above or at such other address as Tenant may designate by notice to Mortgagee and Landlord, or (c) if to Landlord, then in duplicate, under separate cover, one copy to the attention of its [Senior Vice President - Retail Development], and one copy to the attention of its [General Counsel — Real Estate], at the address of Landlord set forth above or at such other address or to such other persons as Landlord may designate by notice to Mortgagee and Tenant.

6.This Agreement shall inure to the benefit of and be binding on and enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns (including New Owner).

7. This Agreement contains the entire agreement among the parties with respect to the Shopping Center and cannot be changed, modified, waived or canceled except by an agreement in writing executed by the party against whom enforcement of such modification, change, waiver or cancellation is sought.

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8.This Agreement and the covenants herein are intended to run with and bind all lands affected hereby.

[Signature Page Follows]

241

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

MORTGAGEE:
BANK OF AMERICA, N.A., as Collateral Agent
By:
	Name:
	Title:
LANDLORD:
1
By:
	Name:
	Title:
TENANT:
[                                                                                                       ]
By:
	Name:
	Title:

**********

[Insert applicable Notary Acknowledgements]

**********

[Exhibit A

Legal Description]

242

Schedule A

to Mortgage

Third Party Leases of Mortgaged Property

Appendix A

to Mortgage

Local Law Provisions

EXHIBIT Q-2

Form of Mortgaze (Principal Properties)

RECORDING REQUESTED BY:

AND WHEN RECORDED MAIL TO:

Space above this line for recorder’s use only

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT(1)

THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT dated this 27th day of December 2007, to be effective as of December 3, 2007 (this “Mortgage”), by [                        J, a [                              ], having an office in care of The Great Atlantic & Pacific Tea Company, Inc., Two Paragon Drive, Montvale, New Jersey 07645 (the “Mortgagor”), to BANK OF AMERICA, N.A., a national banking association, having an office at 100 Federal Street, Boston, Massachusetts 02110, as collateral agent (in such capac ity, the “Collateral Agent”) for the benefit of the Secured Parties (as defined below) to whom any Secured Obligations (as defined below) are owing (the “Mortgagee”);

WITNESSETH THAT:

A.Reference is made to (a) that certain Credit Agreement dated as of December 3, 2007 (as amended, supplemented or otherwise modified from time to time, the “Existing Agreement”), entered into by, among others, The Great Atlantic & Pacific Tea Company, Inc. (the “Company”), a Maryland corporation, the other Borrowers party thereto (including, without limitation, the Mortgagor), the lenders from time to time party thereto, the Collateral Agent and Bank of America, N.A., a national banking association, as Administrative Agent (in such capacity, the “Administrative Agent”); and (b) that certain Security Agreement, dated as of December 3, 2007 (as amended, supplemented or otherwise modified from time to time, the “Security Agreement”) entered into by, among others, the Company, the other Borrowers (including, without limitation, the Mortgagor), certain guarantors named therein, and the Collateral Agent.

B.Pursuant to the terms and conditions of that certain Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) entered into by, among others, the Company, the

(1) This form of Mortgage shall be revised to incorporate any local law requirements under applicable law.

other Borrowers (including, without limitation, the Mortgagor), the lenders party to the Existing Agreement and certain other lenders party thereto (collectively, the “Lenders”), the Administrative Agent and the Collateral Agent, the parties to the Existing Agreement have agreed to amend and restate the Existing Agreement in its entirety. Capitalized terms used herein and not defined herein shall have meanings assigned to such terms in the Amended and Restated Credit Agreement.

C.Among other financial accommodations provided pursuant to the Existing Agreement, the Lenders have made a Term Loan (as defined in the Existing Agreement) to the Borrowers, pursuant to, and upon the terms and subject to the conditions specified in, the Existing Agreement, for the purpose of acquiring the Principal Properties including, but not limited to, the Mortgaged Property (as defined below). The Mortgagor will receive substantial benefits from the execution, delivery and performance of the Loan Documents and is, therefore, willing to en ter into this Mortgage.

D.One of the conditions to the making of the Term Loan was that, among other things, the Mortgagor execute and deliver an agreement in the form hereof to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Term Loan, when and as due, whether at maturity, by acceleration, upon one or m ore dates set for prepayment or otherwise and (ii) all other monetary obligations relating to the Term Loan including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise, of the Loan Parties under the Amended and Restated Credit Agreement and the other Loan Documents, to the extent relating to the Term Loans, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Amended and Restated Credit Agreement and the other Loan Documents, to the extent relating to the Term Loan and (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of the Mortgagor under or pursuant to this Mortgage or the other Loan Documents, all to the extent relating to the Term Loan and other obligations described in the preceding clauses (a) through (c) being collectively called the “Secured Obligations”).

E. Pursuant to the requirements of the Amended and Restated Credit Agreement, the Mortgagor is entering into this Mortgage to create a security interest in the Mortgaged Property (as defined herein) to secure the performance and payment by the Mortgagor of the Secured Obligations. The Amended and Restated Credit Agreement also requires the granting by the Mortgagor and other Loan Parties of other mortgages (the “Other Mortgages”) that create security interests in certain mortgaged properties other than the Mortgaged Property to secure the performance of the Obligations (including, but not limited to, the Secured Obligations) to the extent set forth therein. For purposes of clarity, this Mortgage shall secure only the Secured Obligations.

Granting Clauses

NOW THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure (A) the due and punctual payment and performance of the Secured Obligations, (B) the due and punctual payment by the Mortgagor of all taxes and insurance premiums relating to the Mortgaged Property and (C) all disbursements made by the Mortgagee for the payment of taxes, common area charges or insurance premiums, all fees, expenses or advances in connection with or relating to the Mortgaged Property, and interest on such disbursements and other amounts not timely paid in accordance with the terms of the Amended and Restated Credit Agreement, this Mortgage and the other Loan Documents, the Mortgagor hereby gives, GRANTS, bargains, sells, warrants, aliens, remises, releases, conveys, assigns, transfers, mortgages, hypothecates, deposits, pledges, sets over, confirms, and otherwise gran ts a security

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interest unto Mortgagee (for the ratable benefit of the Secured Parties (as defined in the Security Agreement) to whom any Secured Obligations are owing) with POWER OF SALE, all its estate, right, title and interest in, to and under any and all of the following described property (the “Mortgaged Property”) whether now owned, leased or held or hereafter acquired and Mortgagor does hereby bind itself, its successors and assigns to warrant and forever defend the title to the Mortgaged Property unto Mortgagee:

(1)all of the Mortgagor’s right, title and interest in all the land more particularly
described on Exhibit A hereto (the “Owned Land”);

(2)[Intentionally Omitted]

(3)all of the Mortgagor’s right, title and interest in all rights appurtenant to the Land, including the easements over certain other adjoining land granted by any easement agreements, covenant or restrictive agreements and all air rights, mineral rights, water rights, oil and gas rights and development rights, if any, relating thereto, and also together with all of the other easements, rights, privileges, interests, hereditaments and appurtenances thereunto belonging or in anyway appertaining and all of the estate, right, title, interest, claim or demand whatsoever of the Mortgagor therein and in the streets and ways adjacent thereto, eit her in law or in equity, in possession or expectancy, now or hereafter acquired (the Land and the property described in this subparagraph (3), the “Premises”);

(4)all of the Mortgagor’s right, title and interest in all buildings, improvements, structures, paving, parking areas, walkways and landscaping now or hereafter erected or located upon the Land, and all fixtures of every kind and type affixed to the Premises or attached to or forming part of any structures, buildings or improvements and replacements thereof now or hereafter erected or located upon the Land (the “Improvements”);

(5)all of the Mortgagor’s right, title and interest in all apparatus, movable appliances, building materials, equipment, fittings, furnishings, furniture, machinery and other articles of tangible personal property of every kind and nature, and replacements thereof, now or at any time hereafter placed upon or used in any way in connection with the use, enjoyment, occupancy or operation of the Improvements or the Premises, including all of the Mortgagor’s books and records relating thereto and including all pumps, tanks, goods, machinery, tools, equipment (including fire sprinklers and alarm systems, fire prevention or control systems, cleaning rigs, air conditioning, heating, boilers, refrigerating, electronic monitoring, water, loading, unloading, lighting, power, sanitation, waste removal, entertainment, communications, computers, recreational, maintenance, truck or car repair and all other equipment of every kind), lifts, restaurant, bar and all other indoor or outdoor furniture (including tables, chairs, booths, serving stands, planters, desks, sofas, racks, shelves, lockers and cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other decorative items, furnishings, appliances, supplies, inventory, rugs, carpets and other floor coverings, draperies, drapery rods and brackets, awnings, venetian blinds, partitions, chandeliers and other lighting fixtures, freezers, refrigerators, walk-in coolers, signs (indoor and outdoor), computer systems, cash registers and inventory control systems, and all other apparatus, equipment, furniture, furnishings, and articles used in connection with the use or operation of the I mprovements or the Premises (the property referred to in this subparagraph (5), the “Personal Property”);

(6) all of the Mortgagor’s right, title and interest in all general intangibles relating to design, development, operation, management and use of the Premises or the Improvements, all certificates of occupancy, zoning variances, building, use or other permits, approvals,

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authorizations and consents obtained from and all materials prepared for filing or filed with any governmental agency in connection with the development, use, operation or management of the Premises and the Improvements, all construction, service, engineering, consulting, leasing, architectural and other similar contracts concerning the design, construction, management, operation, occupancy and/or use of the Premises and Improvements, all architectural drawings, plans, specifications, soil tests, feasibility studies, appraisals, environmental studies, engineering reports and similar materials relating to any portion of or all of the Premises and the Improvements, and all payment and performance bonds or warranties or guarantees relating to the Premises or the Improvements (the “Permits, Plans and Warranties”);

(7)the Mortgagor’s interest in and rights under any and all now or hereafter existing leases or licenses (under which the Mortgagor is landlord or licensor), concession, management, mineral or other agreements of a similar kind that permit the use or occupancy of the Premises or the Improvements for any purpose in return for any payment, or the extraction or taking of any gas, oil, water or other minerals from the Premises in return for payment of any fee, rent or royalty (collectively, the “Third Party Leases”), and subject to the terms of the Amended and Restated Credit Agreement, all agreements or contracts for the sale or other disposition of all or any part of the Premises or the Improvements, now or hereafter entered into by the Mortgagor, together with all charges, fees, income, issues, profits, receipts, rents, revenues or royalties payable thereunder (the “Rents”);

(8)all of the Mortgagor’s right, title and interest in and to all real estate tax refunds and all proceeds of the conversion, voluntary or involuntary, of any of the Mortgaged Property into cash or liquidated claims (“Proceeds”), including, subject to the terms of the Amended and Restated Credit Agreement, Proceeds of insurance maintained by the Mortgagor and condemnation awards, any awards that may become due by reason of the taking by eminent domain or any transfer in lieu thereof of the whole or any part of the Premises or the Improvements or any rights appurtenant thereto, and any awards for change of grade of s treets, together with any and all moneys now or hereafter on deposit for the payment of real estate taxes, assessments or common area charges levied against the Mortgaged Property, unearned premiums on policies of fire and other insurance maintained by the Mortgagor covering any interest in the Mortgaged Property; and

(9) all of the Mortgagor’s right, title and interest in and to all extensions, improvements, betterments, renewals, substitutes and replacements of and all additions and appurtenances to, the Land, the Premises, the Improvements, the Personal Property, the Permits, Plans and Warranties and the Third Party Leases, as applicable, hereinafter acquired by or released to the Mortgagor or constructed, assembled or placed by the Mortgagor on the Land, Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust, conveyance, assignment or other act by the Mortgagor, all of which shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described herein.

Notwithstanding the foregoing, the Mortgaged Property shall not include (i) the Bermuda Shares (as defined in the Security Agreement), and (ii) any personal property consisting of (A) any Permits, Plans and Warranties, lease, license, contract, agreement, joint venture agreement, or other instrument to which the Mortgagor is a party and any Equity Interests in a joint venture to the extent the Mortgagor is prohibited from granting a Lien in its rights thereunder pursuant to the terms of any such Permits, Plans and Warranties, lease, license, contract, agreement, the

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shareholder or other similar agreement governing such joint venture, 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 or principles of equity), provided that the Proceeds from any such personal property, including Permits, Plans and Warranties, lease, license, contract, agreement, or other instrument or such Equity Interests in a joint venture shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited, and provided further that in no event shall the foregoing exclusions apply to any Third Party Lease; (B) any Excluded Equipment (as defined in the Security Agreement) ow ned by the Mortgagor on the date hereof or hereafter acquired; provided that all proceeds paid or payable to the Mortgagor from any sale, transfer or assignment or other voluntary or involuntary disposition of such Excluded Equipment and all rights to receive such proceeds shall be included in the Mortgaged Property to the extent not otherwise required to be paid to the holder of the Indebtedness secured by such Excluded Equipment; (C) any United States intent-to-use trademark application to the extent and for so long as creation by the Mortgagor of a security interest therein would impair the validity or enforceability of such intentto-use trademark applications; (D) assets or Equity Interests acquired by the Mortgagor after the date hereof in an acquisition permitted by the Amended and Restated Credit Agreement to the extent such assets or Equity Interests are subject to Liens permitted by Section 6.02(d) of the Amended and Restated Credit Agreement and the documents applicable to such Liens prohibit creation of any other security interest on such assets, and (E) any voting Equity Interests of a Foreign Subsidiary in excess of 65% of all outstanding voting Equity Interests of such Foreign Subsidiary; and provided, further, that the term “Mortgaged Property” as used in this Mortgage shall not include any “Collateral” as defined in the Pledge Agreement

TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and assigns, for the ratable benefit of the Secured Parties to whom any Secured Obligations are owing, forever, subject only to the Permitted Liens (as hereinafter defined) and to satisfaction and cancellation as provided in Section 3.04(a) and (b).

ARTICLE I

Representations, Warranties and Covenants of the Mortgagor

The Mortgagor agrees, covenants, represents and/or warrants as follows:

SECTION 1.01.              Title.

(a)             The Mortgagor has good and marketable title to an indefeasible fee estate in the Owned Land and Improvements located thereon subject to no lien, charge or encumbrance other than Liens permitted by Section 6.02 of the Amended and Restated Credit Agreement (collectively, the “Permitted Liens”). The Mortgagor is lawfully seized and possessed of and has a valid subsisting leasehold estate in the Leased Land and Improvements located thereon subject to no lien, charge or encumbrance other than the Permitted Liens. This Mortgage is and will remain a valid and enforceable first and prior lien on the Premises, the Improvements and the Rents subject only to the Permitted Liens. The Permitted Liens do not materially interfere with the current use, enjoyment or operation of the Mortgaged P roperty.

(b)             Except as set forth on Schedule A hereto, there are no Third Party Leases affecting a material portion of the Mortgaged Property. Each Third Party Lease is in full force and effect,

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and, except as set forth on Schedule A hereto, the Mortgagor has not given, nor to the Mortgagor’s knowledge has it received, any uncured or unwaived notice of default with respect to any material obligation under any Third Party Lease. To the Mortgagor’s knowledge, each Third Party Lease is subject to no lien, charge or encumbrance other than this Mortgage and the Permitted Liens.

(c)             The Mortgagor is in compliance, and shall comply with all zoning, land use and building laws, regulations, ordinances and orders of any Governmental Authority affecting the Mortgaged Property, except for any such laws, regulations, ordinances and orders of any Governmental Authority that the failure to comply with could not reasonably be expected to have a material adverse effect on the Mortgaged Property.

(d)             The Mortgagor has good and lawful right and full power and authority to mortgage the Mortgaged Property and will forever warrant and defend its title to the Mortgaged Property, the rights of the Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage thereon against the claims of all persons and parties except those having rights under Permitted Liens to the extent of those rights.

(e) There will be no defenses or offsets to this Mortgage that will be asserted by the Mortgagor or its Affiliates (or any third party defense or offset now known to the Mortgagor or its Affiliates) or to any of the Secured Obligations for so long as any portion of the Secured Obligations is outstanding, other than payment of the Secured Obligations.

SECTION 1.02.              Amended and Restated Credit Agreement; Certain Amounts.

(a)             This Mortgage is given pursuant to the Amended and Restated Credit Agreement. To the extent there is a specific conflict between the terms hereof and the terms of the Amended and Restated Credit Agreement, the terms of the Amended and Restated Credit Agreement shall control; provided, however, that to the extent the representations and covenants contained in this Mortgage (including but not limited those set forth in Section 1.01) are more stringent or expansive than comparable representations and covenants contained in the Amended and Restated Credit Agreement, the representations and covenants contained herein shall be construed to supplement the representations and covenants in the Amended and Restated Credit Agreement without creating a conflict or inconsistency therewith, and the Mo rtgagor shall be bound to the more stringent or expansive representations and covenants hereunder.

(b)             Without limiting the terms of the Amended and Restated Credit Agreement, if any remedy or right of Mortgagee pursuant hereto is acted upon by the Mortgagee or if any actions or proceedings (including any bankruptcy, insolvency or reorganization proceedings) are commenced in which the Mortgagee is obliged to defend or uphold or enforce this Mortgage or the rights of the Mortgagee hereunder, the Mortgagor will pay all reasonable sums, including reasonable attorneys’ fees and disbursements, incurred by the Mortgagee related to the exercise of any remedy or right of the Mortgagee pursuant hereto or for the reasonable expense of any such action or proceeding together with all statutory or other costs, disbursements and allowances, interest thereon from the date of demand for payment thereof at the r ate specified in clause (c) of Section 2.13 of the Amended and Restated Credit Agreement (the “Default Interest Rate”), and such sums and the interest thereon shall, to the extent permissible by law, be a lien on the Mortgaged Property prior to any right, title to, interest in or claim upon the Mortgaged Property attaching or accruing subsequent to the recording of this Mortgage and shall be secured by this Mortgage to the extent permitted by law. Any payment of amounts due under this Mortgage not made on or before the due date for such payments shall accrue interest daily without notice from the due date until paid at the Default Interest Rate, and such interest at the Default Interest Rate shall be due upon demand by the Mortgagee.

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SECTION 1.03. Payment of Taxes, Liens and Charges. In the event of the passage of any state, Federal, municipal or other governmental law, order, rule or regulation subsequent to the date hereof (i) deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or in any manner changing or modifying the laws now in force governing the taxation of this Mortgage or debts secured by mortgages or deeds of trust (other than laws governing income, franchise and similar taxes generally) or the manner of collecting taxes thereon and (ii) imposing a tax to be paid by the Mortgagee, either directly or indirectly, on this Mortgage or any of the Loan Documents or to require an amount of taxes to be withheld or deducted therefrom, the Mortgagor will promptly notify the Mortgagee of such event. In such event and to the ext ent permitted by law, and without limiting the terms of the Amended and Restated Credit Agreement, the Mortgagor shall (i) agree to enter into such further instruments as may be reasonably necessary or desirable to obligate the Mortgagor to make any applicable additional payments and (ii) make such additional payments.

SECTION 1.04. Insurance. The Mortgagor will keep or cause to be kept the Improvements and the Personal Property insured against such risks, and in the manner, required by Section 5.07 of the Amended and Restated Credit Agreement.

SECTION 1.05.              Assignment of Leases and Rents.

(a) The Mortgagor hereby irrevocably and absolutely grants, transfers and assigns all of its right, title and interest in all Third Party Leases, together with any and all extensions and renewals thereof for purposes of securing and discharging the performance by the Mortgagor of the Secured Obligations, as well as all of its right, title and interest in all Rents. Except to the extent permitted by the Amended and Restated Credit Agreement, the Mortgagor has not assigned or executed any assignment of, and will not assign or execute any assignment of, any other Third Party Lease or their respective Rents to anyone other than the Mortgagee.

(h) At the Mortgagor’s request, the Mortgagee shall enter into a Subordination, Nondisturbance and Attornment Agreement with respect to all Third Party Leases entered into after the date hereof, and shall use commercially reasonable efforts to require that such agreement be substantially as set forth in Exhibit B hereto.

(c)             Subject to Section 1.05(d), the Mortgagor has assigned and transferred to the Mortgagee all of the Mortgagor’s right, title and interest in and to the Rents now or hereafter arising from each Third Party Lease heretofore or hereafter made or agreed to by Mortgagor, it being intended that this assignment establish, subject to Section 1.05(d), an absolute transfer and assignment of all Rents and all Third Party Leases to the Mortgagee and not merely to grant a security interest therein. Subject to Section 1.05(d), the Mortgagee may in the Mortgagor’s name and stead (with or without first taking possession of any of the Mortgaged Property personally or by receiver as provided herein) operate the Mortgaged Property and rent, lease or let all or any portion of any of the Mortgage d Property to any party or parties at such rental and upon such terms as the Mortgagee shall, in its reasonable discretion, determine, and may collect and have the benefit of all of said Rents arising from or accruing at any time thereafter or that may thereafter become due under any Third Party Lease.

(d)             So long as an Event of Default shall not have occurred and be continuing, and subject to the Mortgagor’s compliance with the provisions of Section 5.14 of the Amended and Restated Credit Agreement, the Mortgagee will not exercise any of its rights under Section 1.05(c), and the Mortgagor shall receive and collect the Rents accruing under any Lease; but after the occurrence and during the continuance of any Triggering Event, the Mortgagee may, at its option, receive and collect all Rents and, from and after the occurrence and during the continuance of an Event of Default, enter upon

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the Premises and Improvements through its officers, agents, employees or attorneys for such purpose and for the operation and maintenance thereof. The Mortgagor hereby irrevocably authorizes and directs each tenant, if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to rely upon any notice of a claimed Triggering Event or an Event of Default sent by the Mortgagee to any such tenant or any of such tenant’s successors in interest, and thereafter to pay Rents to the Mortgagee without any obligation or right to inquire as to whether a Triggering Event or an Event of Default actually exists and even if some notice to the contrary is received from the Mortgagor, who shall have no right or claim against any such tenant or successor in interest for any such Rents so paid to the Mortgagee. Each tenant or any of such tenant’s successors in intere st from whom the Mortgagee or any officer, agent, attorney or employee of the Mortgagee shall have collected any Rents, shall be authorized to pay Rents to the Mortgagor only after such tenant or any of their successors in interest shall have received written notice from the Mortgagee that the Triggering Event or Event of Default is no longer continuing, unless and until a further notice of a Triggering Event or Event of Default is given by the Mortgagee to such tenant or any of its successors in interest.

(e)           The Mortgagee will not become a mortgagee in possession so long as it does not enter or take actual possession of the Mortgaged Property. In addition, the Mortgagee shall not be responsible or liable for performing any of the obligations of the landlord under any Third Party Lease, for any waste by any tenant, or others, for any dangerous or defective conditions of any of the Mortgaged Property, for negligence in the management, upkeep, repair or control of any of the Mortgaged Property or any other act or omission by any other person.

(f)            At any time after the occurrence and during the continuance of an Event of Default and no more than once annually otherwise, Mortgagor shall furnish to the Mortgagee, within thirty (30) days after a request by the Mortgagee to do so, a written statement containing the names of all tenants, subtenants and concessionaires of the Premises or the Improvements, the terms (i.e., expiration dates) of any Lease, the space occupied and the rentals or license fees payable thereunder.

SECTION 1.06. Restrictions on Transfers and Encumbrances. Except as permitted by the Amended and Restated Credit Agreement, the Mortgagor shall not directly or indirectly sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge, encumber or otherwise transfer, create, consent to or suffer the creation of any lien, charge or any form of encumbrance upon any interest in or any part of the Mortgaged Property, or be divested of its title to the Mortgaged Property or any interest therein in any manner or way, whether voluntarily or involuntarily (other than resulting from a condemnation), or engage in any common, cooperative, joint, time-sharing or other congregate ownership of all or part thereof; provided, however, that the Mortgagor may in the ordinary course of business within reasonable commercial standards, enter into easement or covena nt agreements that relate to and/or benefit the operation of the Mortgaged Property and that do not materially adversely affect the use and operation of the same (including customary utility easements that service the Mortgaged Property, which are permitted).

SECTION 1.07. Security Agreement. This Mortgage is both a mortgage of real property and a grant of a security interest in personal property, and shall constitute and serve as a “Security Agreement” within the meaning of the uniform commercial code as adopted in the state wherein the Premises are located (the “UCC”). The Mortgagor has hereby granted unto the Mortgagee a security interest in and to all the Mortgaged Property described in this Mortgage that is not real property, and simultaneously with the recording of this Mortgage, the Mortgagor has filed or will file UCC financing statements, and will file continuation statements prior to the lapse thereof, at the appropriate offices in the State in which the Premises are located (or in such other jurisdictions as reasonably requested by the Collateral Agent) to perfect the security interest granted by this Mortgage in all the Mortgaged Property that is not real property. Without limiting the foregoing, the Mortgagor hereby

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designates the Collateral Agent as the Mortgagor’s true and lawful attorney, exercisable by the Collateral Agent 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 or other documents as it determines reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by the Mortgagor, without the signature of the Mortgagor (the Mortgagor hereby appointing the Collateral Agent as the Mortgagor’s attorney to sign the Mortgagor’s name to any such instrument or document, whether or not an Event of Default exists), and naming the Mortgagor as debtor and the Collateral Agent as secured party. Any such Financing Statement may indicate the collateral as “all assets” of the Mortgagor, &# 147;all personal property” of the Mortgagor 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. The Mortgagee shall have all rights with respect to the part of the Mortgaged Property that is the subject of a security interest afforded by the UCC in addition to, but not in limitation of, the other rights afforded the Mortgagee hereunder and under the Security Agreement.

SECTION 1.08. Filing and Recording. The Mortgagor will cause this Mortgage, any other security instrument creating a security interest in or evidencing the lien hereof upon the Mortgaged Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the security interest of the Mortgagee in, the Mortgaged Property. The Mortgagor will pay all filing, registration or recording fees, and all reasonable expenses incidental to the execution and acknowledgment of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property, and any instrument of further assurance and all Federal, state, county and municipal recording, documentary or intangi ble taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery and recording of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property or any instrument of further assurance.

SECTION 1.09. Additions to Mortgaged Property. Except to the extent specifically excluded from the Mortgaged Property pursuant to the Granting Clauses hereof, all right, title and interest of the Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by or released to the Mortgagor or constructed, assembled or placed by the Mortgagor upon the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case without any further mortgage, conveyance, assignment or other act by the Mortgagor, shall become subject to the lien and security interest of this Mortgage as fully and com pletely and with the same effect as though now owned by the Mortgagor and specifically described in the grant of the Mortgaged Property above, but at any and all times the Mortgagor will execute and deliver to the Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as the Mortgagee may reasonably require for the purpose of expressly and specifically subjecting the same to the lien and security interest of this Mortgage.

SECTION 1.10. No Claims Against Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by the Mortgagee, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, nor as giving the Mortgagor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Mortgagee in respect thereof.

SECTION 1.11.                Fixture Filing. Certain of the Mortgaged Property includes items of personal property which are or are to become “fixtures” (as that term is defined in the UCC) on the Land.

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To the extent permitted under applicable law, the filing hereof in the real estate records of the county in which such Mortgaged Property is located shall also operate from the date of such recording as a financing statement filed as a fixture filing with respect to such Mortgaged Property that is or may become fixtures, and the following information is applicable for the put   pose of such fixture filing, to wit:

Name and Address of the debtor: The Mortgagor having the address described in the Preamble hereof. The Mortgagor is a [               ]organized under  the laws of the State of [               ]whose Organization Number is [               ], and whose Taxpayer Identification Number is [               ]•	Name and Address of the secured party: The Mortgagee having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained.
This Financing Statement covers the following types or items of property: The Mortgaged Property. This instrument, covers goods or items of personal property which are or are to become fixtures upon the property. The Mortgagor is the record owner of the Owned Land.

In addition, the Mortgagor hereby authorizes the Mortgagee to file appropriate financing and continuation statements under the UCC in effect in the jurisdiction in which the Mortgaged Property is located or where the Mortgagor is located/organized or any other applicable jurisdiction as may be required by law in order to create, establish, preserve and protect the liens and security interests intended to be granted to the Mortgagee pursuant to this Mortgage in the Mortgaged Property.

SECTION 1.12. Estoppel Certificates. The Mortgagor, within thirty (30) Business Days upon request by mail, shall furnish the Mortgagee a written statement, duly acknowledged, of the amount of the Secured Obligations then secured by this Mortgage and whether any offsets or defenses exist against any such Secured Obligations.

ARTICLE II

Defaults and Remedies

SECTION 2.01. Demand for Payment. If an Event of Default shall occur and be continuing, then, upon written demand of the Mortgagee (except with respect to an Event of Default under Section 7.01(h) or (i) of the Amended and Restated Credit Agreement, in which case such amounts shall be automatically due and payable in full without written demand), the Mortgagor will pay to the Mortgagee all amounts due hereunder and such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable attorneys’ fees, disbursements and expenses incurred by the Mortgagee and the Mortgagee shall be entitled and empowered to institute an action or proceedings at law or in equity for the collection of the sums so due and unpaid, to prosecute any such action or proceedings to judgment or final decree, to enforce any such jud gment or final decree against the Mortgagor and to collect, in any manner provided by law, all moneys adjudged or decreed to be payable.

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SECTION 2.02.               Rights to Take Possession, Operate and Apply Revenues.

(a)             If an Event of Default shall occur and be continuing, the Mortgagor shall, upon demand of the Mortgagee, forthwith surrender to the Mortgagee actual possession of the Mortgaged Property and, if and to the extent not prohibited by applicable law, the Mortgagee itself, or by such officers or agents as it may appoint, may then enter and take possession of all or any portion of the Mortgaged Property without the appointment of a receiver or an application therefor, exclude the Mortgagor and its agents and employees wholly therefrom, and have access to the books, papers and accounts of the Mortgagor relating to the Mortgaged Property.

(b)             If the Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after such demand by the Mortgagee, the Mortgagee may to the extent not prohibited by applicable law, obtain a judgment or decree conferring upon the Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession of the Mortgaged Property to the Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. The Mortgagor will pay to the Mortgagee, upon demand, all reasonable expenses of obtaining such judgment or decree, including reasonable compensation to the Mortgagee’s attorneys and agents with interest thereon at the Default Interest Rate; and all such expenses and compensation shall, until paid, be secured by this Mortgage.

(c)               Upon every such entry or taking of possession, the Mortgagee may, to the extent not prohibited by applicable law, hold, store, use, operate, manage and control the Mortgaged Property, conduct the business thereof and, from time to time, (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii) purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor to the same extent as the Mortgagor could in its own name or otherwise with respect to the same, or (v) enter into any and all agreements with respect to th e exercise by others of any of the powers herein granted the Mortgagee, all as may from time to time be directed or determined by the Mortgagee to be in its best interest and the Mortgagor hereby appoints the Mortgagee as its true and lawful attorney-in-fact and agent, for the Mortgagor and in its name, place and stead, in any and all capacities, to perform any of the foregoing acts. The Mortgagee may collect and receive all the Rents, issues, profits and revenues from the Mortgaged Property, including those past due as well as those accruing thereafter, and, after deducting (i) all expenses of taking, holding, managing and operating the Mortgaged Property (including compensation for the services of all persons employed for such purposes), (ii) the costs of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges as the Mortgagee may at its o ption pay, (v) other proper charges upon the Mortgaged Property or any part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of the Mortgagee, the Mortgagee shall apply the remainder of the moneys and proceeds so received first to the payment to the Mortgagee for the satisfaction of the Secured Obligations in accordance with Section 7.03 of the Amended and Restated Credit Agreement and second, if there is any surplus, to the Mortgagor, subject to the entitlement of others thereto under applicable law.

(d)              Whenever, before any sale of the Mortgaged Property under Section 2.05, all Secured Obligations that are then due shall have been paid and all Events of Default waived, the Mortgagee will surrender possession of the Mortgaged Property back to the Mortgagor, its successors or assigns. The same right of taking possession shall, however, arise again if any subsequent Event of Default shall occur and be continuing.

SECTION 2.03.                 Right to Cure Mortgagor’s Failure to Perform. If an Event of Default occurs and is continuing, the Mortgagee may pay, perform or observe the term, covenant or

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condition the failure of which to observe resulted in such Event of Default, and all payments made or costs or expenses incurred by the Mortgagee in connection therewith shall be secured hereby and shall be, without demand, promptly repaid by the Mortgagor to the Mortgagee with interest thereon at the Default Interest Rate. The Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or the Improvements or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without having any obligation to so perform or observe and without thereby becoming liable to the Mortgagor, to any person in possession holding under the Mortgagor or to any other person.

SECTION 2.04. Right to a Receiver. If an Event of Default shall occur and be continuing, the Mortgagee, upon application to a court of competent jurisdiction, shall be entitled as a matter of right to the appointment of a receiver to take possession of and to operate the Mortgaged Property and to collect and apply the Rents. The Mortgagee shall provide to the Mortgagor written notice of such application prior to the appointment of a receiver. The receiver shall have all of the rights and powers permitted to a receiver under the laws of the state wherein the Mortgaged Property is located. The Mortgagor shall pay to the Mortgagee upon demand all reasonable expenses, including receiver’s fees, reasonable attorney’s fees and disbursements, costs and agent’s compensation incurred pursuant to the provisions of this Section 2.04; and all such expens es shall be secured by this Mortgage and shall be, without demand, promptly repaid by the Mortgagor to the Mortgagee with interest thereon at the Default Interest Rate.

SECTION2.05.               Foreclosure and Sale.

(a)             If an Event of Default shall occur and be continuing, the Mortgagee may elect to sell the Mortgaged Property or any part of the Mortgaged Property by exercise of the power of foreclosure or of sale granted to the Mortgagee by applicable law or this Mortgage. Alternatively, the Mortgagee may commence a civil action to foreclose this Mortgage, or it may proceed and sell the Mortgaged Property to satisfy any Secured Obligation. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property, may sell all or such parts of the Mortgaged Property as may be chosen by the Mortgagee at the time and place of sale fixed by it in a notice of sale, either as a whole or in separate lots, parcels or items as the Mortgagee shall deem expedient, and in such order as it may determine , at public auction to the highest bidder. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property may postpone any foreclosure or other sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale. Without further notice, the Mortgagee or an officer appointed to sell the Mortgaged Property may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Any person, including the Mortgagor or the Mortgagee or any designee or affiliate thereof, may purchase at such sale.

(b)           The Mortgaged Property may be sold subject to unpaid taxes and Permitted Liens, and, after deducting all costs, fees and expenses of the Mortgagee (including costs of evidence of title in connection with the sale), the Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 2.07.

(c) Any foreclosure or other sale of less than the whole of the Mortgaged Property or any defective or irregular sale made hereunder shall not exhaust the power of foreclosure or of sale provided for herein; and subsequent sales may be made hereunder until the Secured Obligations have been satisfied, or the entirety of the Mortgaged Property has been sold.

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(d)           If an Event of Default shall occur and be continuing, the Mortgagee may instead of, or in addition to, exercising the rights described in Section 2.05(a) above and either with or without entry or taking possession as herein permitted, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy (i) to specifically enforce payment of some or all of the Secured Obligations, or the performance of any term, covenant, condition or agreement of this Mortgage or any other Loan Document or any other right, or (ii) to pursue any other remedy available to the Mortgagee, all as the Mortgagee shall determine most effectual for such purposes.

(e)           In the event all or part of the Mortgaged Property is included at any foreclosure sale conducted pursuant hereto, a single total price for the Mortgaged Property, or such part thereof as is sold, may be accepted by Mortgagee with no obligation to distinguish between the application of such proceeds amongst the property comprising the Mortgaged Property.

SECTION 2.06.               Other Remedies.

(a)           In case an Event of Default shall occur and be continuing, the Mortgagee may also exercise, to the extent not prohibited by law, any or all of the remedies available to a secured party under the UCC of the State wherein the Mortgaged Property is located. Without limiting the rights and remedies of the Mortgagee, the Mortgagee may sell any part of the Mortgaged Property consisting of Personal Property in a single lot with any other Mortgaged Property of any type, whether real or personal.

(b)           In connection with a sale of the Mortgaged Property or any Personal Property and the application of the proceeds of sale as provided in Section 2.07, the Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the Secured Obligations, plus all other charges, payments and costs due under this Mortgage, and to recover a deficiency judgment for any portion of the aggregate principal amount of the Secured Obligations remaining unpaid, with interest.

SECTION 2.07. Application of Sale Proceeds and Rents. After any foreclosure sale of all or any of the Mortgaged Property, the Mortgagee shall receive the proceeds of sale, no purchaser shall be required to see to the application of the proceeds and the Mortgagee shall apply the proceeds of the sale together with any Rents that may have been collected and any other sums that then may be held by the Mortgagee under this Mortgage in accordance with the provisions of Section 7.03 of the Amended and Restated Credit Agreement. The Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of the Mortgaged Property by the Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Mortgagee or of th e officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged Property 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 Mortgagee or such officer or be answerable in any way for the misapplication thereof.

SECTION 2.08. Mortgagor as Tenant Holding Over. If the Mortgagor remains in possession of any of the Mortgaged Property after any foreclosure sale by the Mortgagee, at the Mortgagee’s election the Mortgagor shall be deemed a tenant holding over and shall forthwith surrender possession to the purchaser or purchasers at such sale or be summarily dispossessed or evicted according to provisions of law applicable to tenants holding over.

SECTION 2.09. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. The Mortgagor waives, to the extent not prohibited by law, (i) the benefit of all laws now existing or that hereafter may be enacted providing for any appraisement of any portion of the Mortgaged Property, (ii) the benefit of all laws now existing or that may be hereafter enacted in any way extending the time for the enforcement or the collection of amounts due under any of the Secured

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Obligations or creating or extending a period of redemption from any sale made in collecting said debt or any other amounts due to the Mortgagee, (iii) any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, homestead exemption, valuation, stay, statute of limitations, extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or as a single parcel in the event of foreclosure or notice of deficiency, and (iv) all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of or each of the Secured Obligations and marshaling in the event of foreclosure of this Mortgage.

SECTION 2.10. Discontinuance of Proceedings. In case the Mortgagee shall proceed to enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall be discontinued or abandoned for any reason, or shall be determined adversely to the Mortgagee, then and in every such case the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Mortgagee shall continue as if no such proceeding had been taken.

SECTION 2.11. Suits To Protect the Mortgaged Property. After the occurrence and during the continuance of an Event of Default, the Mortgagee shall have power (a) to institute and maintain suits and proceedings to prevent any impairment of the Mortgaged Property by any acts that may be unlawful or in violation of this Mortgage, (b) to preserve or protect its interest in the Mortgaged Property and in the Rents arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of or compliance with such enactment, rule or order would impair the security or be prejudicial to the interest of the Mortgagee hereunder.

SECTION 2.12. Filing Proofs of Claim. In case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Mortgagor, the Mortgagee shall, to the extent permitted by law, be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Mortgagee allowed in such proceedings for the Secured Obligations secured by this Mortgage at the date of the institution of such proceedings and for any interest accrued, late charges and additional interest or other amounts due or that may become due and payable hereunder after such date.

SECTION 2.13. Possession by the Mortgagee. Notwithstanding the appointment of any receiver, liquidator or trustee of the Mortgagor, any of its property or the Mortgaged Property, the Mortgagee shall be entitled, to the extent not prohibited by law, to remain in possession and control of all parts of the Mortgaged Property now or hereafter granted under this Mortgage to the Mortgagee in accordance with the terms hereof and applicable law.

SECTION 2.14.            Waiver.

(a) No delay or failure by the Mortgagee to exercise any right, power or remedy accruing upon any breach or Event of Default shall exhaust or impair any such right, power or remedy or be construed to be a waiver of any such breach or Event of Default or acquiescence therein; and every right, power and remedy given by this Mortgage to the Mortgagee may be exercised from time to time and as often as may be deemed expedient by the Mortgagee. No consent or waiver by the Mortgagee to or of any breach or default by the Mortgagor in the performance of the Secured Obligations shall be deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the performance of the same or any other Secured Obligations by Mortgagor hereunder. No failure on the part of the Mortgagee to complain of any act or failure to act or to declare an Event of Default, i rrespective of how long such failure continues, shall constitute a waiver by the Mortgagee of its rights

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hereunder or impair any rights, powers or remedies consequent on any future Event of Default by the Mortgagor.

(b) Even if the Mortgagee (i) grants some forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security for the payment of any sum secured hereby, (iii) waives or does not exercise some right granted herein or under the Loan Documents, (iv) releases a part of the Mortgaged Property from this Mortgage, (v) agrees to change some of the terms, covenants, conditions or agreements of any of the Loan Documents, (vi) consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the granting of an easement or other right affecting the Premises or (viii) makes or consents to an agreement subordinating the Mortgagee’s lien on the Mortgaged Property hereunder; no such act or omission shall preclude the Mortgagee from exercising any other right, power or privilege herein granted or intended to be granted in the event of any Event of Default then made or of any subsequent Event of Default; nor, except as otherwise expressly provided in an instrument executed by the Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or part of the Mortgaged Property, the Mortgagee is hereby authorized and empowered to deal with any vendee or transferee with reference to the Mortgaged Property secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings.

SECTION 2.15. Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Mortgagee by this Mortgage is intended to be exclusive of any other right, power or remedy, and each and every such right, power and remedy shall be cumulative and concurrent and in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute.

ARTICLE III

Miscellaneous

SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions contained in this Mortgage shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Mortgage, and this Mortgage shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein.

SEC. PION 3.02. Notices. All notices and communications hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Amended and Restated Credit Agreement.

SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms, provisions and conditions herein shall run with the Premises and the Improvements and shall apply to, bind and inure to, the benefit of the permitted successors and assigns of the Mortgagor and the permitted successors and assigns of the Mortgagee.

SECTION 3.04.              Satisfaction and Cancellation.

(a) The conveyance to the Mortgagee of the Mortgaged Property as security, created and consummated by this Mortgage shall terminate when all the Secured Obligations have been indefeasibly paid in full (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of the Amended and Restated Credit Agreement, this Mortgage, the

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other Loan Documents or any other agreements relating to Secured Obligations, survive the termination of the Amended and Restated Credit Agreement, this Mortgage, the other Loan Documents or such other agreements), at which time the Collateral Agent shall deliver to the Mortgagor such documents which the Mortgagor shall reasonably request to evidence the termination of this Mortgage. Any execution and delivery of termination documents pursuant to this Section 3.04 shall be without recourse to or warranty by the Collateral Agent.

(b)           Upon a sale or financing by the Mortgagor of all or any portion of the Mortgaged Property to any Person which is not a Loan Party that is permitted under the Amended and Restated Credit Agreement or otherwise consented to by the Required Lenders and the application of the Net Proceeds of such sale or financing in accordance with the Amended and Restated Credit Agreement, the lien of this Mortgage shall be automatically released from the applicable portion of the Mortgaged Property. The Mortgagor shall give the Mortgagee notice of any sale or financing of the Mortgaged Property as required by the Amended and Restated Credit Agreement.

(c)           In connection with any termination or release (i) pursuant to paragraph (a) above, this Mortgage shall be canceled of record, and (ii) pursuant to paragraph (b) above, this Mortgage shall be released or partially released, as appropriate, of record as to such Mortgaged Property, in each case at the request and at the expense of the Mortgagor. The Mortgagee shall execute any documents reasonably requested by the Mortgagor to accomplish the foregoing or to accomplish any release contemplated by paragraph (b) and the Mortgagor will pay all costs and expenses, including reasonable attorneys’ fees, disbursements and other charges, incurred by the Mortgagee in connection with the preparation and execution of such documents.

SECTION 3.05. Definitions. As used in this Mortgage, the singular shall include the plural as the context requires and the following words and phrases shall have the following meanings: (a) “including” shall mean “including but not limited to”; (b) “provisions” shall mean “provisions, terms, covenants and/or conditions”; (c) “lien” shall mean “lien, charge, encumbrance, security interest, mortgage or deed of trust”; (d) “obligation” shall mean “obligation, duty, covenant and/or condition”; and (e) “any of the Mortgaged Property” shall mean “the Mortgaged Property or any part thereof or interest therein”. Any act that the Mortgagee is permitted to perform hereunder may be performed by the Mortgagee or any person or entity designated by the Mortgagee. Each appointment of the Mortgagee as attorney-in-fact for the Mortgagor under this Mortgage is irrevocable, with power of substitution and coupled with an interest. Except as otherwise provided herein, the Mortgagee has the right to refuse to grant its consent, approval or acceptance or to indicate its satisfaction, in its sole discretion, whenever such consent, approval, acceptance or satisfaction is required hereunder.

SECTION 3.06.               Multisite Real Estate Transaction. The Mortgagor acknowledges that this Mortgage is one of a number of Other Mortgages and Security Documents that secure the Secured Obligations. The Mortgagor agrees that the lien of this Mortgage shall be absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of the Mortgagee and without limiting the generality of the foregoing, the lien hereof shall not be impaired by any acceptance by the Mortgagee of any security for or guarantees of any of the Secured Obligations, or by any failure, neglect or omission on the part of the Mortgagee to realize upon or protect any Secured Obligation or any collateral security therefor including the Other Mortgages and other Security Docum ents. The lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or disposition of any of the Obligations (including without limitation the Secured Obligations) or of any of the collateral security therefor, including the Other Mortgages and other Security Documents or of any guarantee thereof, and the Mortgagee may at its discretion foreclose, exercise any power of sale, or exercise any other remedy available to it under any or all of the Other

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Mortgages and other Security Documents without first exercising or enforcing any of its rights and remedies hereunder. Such exercise of the Mortgagee’s rights and remedies under any or all of the Other Mortgages and other Security Documents shall not in any manner impair the indebtedness hereby secured or the lien of this Mortgage and any exercise of the rights or remedies of the Mortgagee hereunder shall not impair the lien of any of the Other Mortgages and other Security Documents or any the Mortgagee’s rights and remedies thereunder. The Mortgagor specifically consents and agrees that the Mortgagee may exercise its rights and remedies hereunder and under the Other Mortgages and other Security Documents separately or concurrently and in any order that it may deem appropriate and waives any rights of subrogation.

SECTION 3.07. Amendments; Waivers; Etc. This Mortgage cannot be modified, changed or discharged except by an agreement in writing, duly acknowledged in form for recording, signed by the Mortgagor and the Mortgagee with the consent of the Secured Parties to whom any Secured Obligations are owing to the extent provided in the Amended and Restated Credit Agreement. For purposes hereof, a statement by the Mortgagee in any modification or supplement to this Mortgage to the effect that such modification or supplement has been consented to by the Secured Parties to whom any Secured Obligations are owing as provided in Section 9.02 of the Amended and Restated Credit Agreement shall be conclusive evidence of such consent and it shall not be necessary for a copy of such consent to be recorded with such modification or supplement as a condition to such modification or supplement being recorded in the appropriate real estate records.

SECTION 3.08. Severability. If any term or provision of this Mortgage or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Mortgage, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Mortgage shall be valid and enforceable to the maximum extent permitted by law. Notwithstanding any payment of any part of the Secured Obligations (whether voluntary or under foreclosure or other enforcement action or procedure or otherwise) the lien of this Mortgage shall continue to encumber all of the Mortgaged Property, it being the parties’ intent that the portion of the Secured Obligations last remaining unpaid shall be deemed secured hereby.< /p>

ARTICLE IV

[Intentionally Omitted]

ARTICLE V

Particular Provisions

This Mortgage is subject to the following provisions relating to the particular laws of the State wherein the Premises are located:

SECTION 5.01. Applicable Law, Certain Particular Provisions. This Mortgage shall be governed by and construed in accordance with the internal law of the State of New York; provided, however, that the provisions of this Mortgage relating to the creation, perfection and enforcement of the lien and security interest created by this Mortgage in respect of the Mortgaged Property and the exercise of each remedy provided hereby, including the power of foreclosure or power of sale procedures set forth in this Mortgage, shall be governed by and construed in accordance with the internal law of the State where the Mortgaged Property is located, and the Mortgagor and the Mortgagee agrees to submit to jurisdiction and the laying of venue for any suit on this Mortgage in such state. The terms and provisions

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set forth in Appendix A attached hereto are hereby incorporated by reference as though fully set forth herein. In the event of any conflict between the terms and provisions contained in the body of this Mortgage and the terms and provisions set forth in Appendix A, the terms and provisions set forth in Appendix A shall govern and control.

SECTION 5.02. Security Agreement. It is expressly agreed that the enumeration of any specific articles of property included in the definition of Mortgaged Property shall in no way result in or be held to modify or limit the scope of any “Collateral” (as defined in the Security Agreement) for the Secured Obligations.

[Signature Page Follows]

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IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to the Mortgagee by the Mortgagor on the date of the acknowledgment attached hereto.

[MORTGAGOR]
By:
	Name:
	Title:

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County of                                             , State of                                  

On December                     , 2007, before me, the undersigned officer,                                  personally appeared                                      personally known and acknowledged himself / herself to me (or proved to me on the basis of satisfactory evidence) to be the                                                of                                 (hereinafter, the “Corporation”) and that as such officer, being duly sworn, and being authorized to do so pursuant to its bylaws or a resolution of its board of directors, executed, subscribed and acknowledged the due execution of the foregoing instrument for the purposes therein contained, by signing the name of the Corporation by himself / herself in his / her authorized capacity as such officer as his / her free and voluntary act and deed and the free and voluntary act and deed of said Corporation.

Witness my hand and official seal.

Notary Public

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Exhibit B

to Mortgage

Legal Descriptions of Owned Land

Exhibit B

to Mortgage

Form of Subordination, Nondisturbance
and Attornment Agreement

Schedule A

to Mortgage

Third Party Leases of Mortgaged Property

Appendix A

to Mortgage

Local Law Provisions

Exhibit R - Form of New Borrower Joinder Agreement

NEW BORROWER JOINDER TO
AMENDED AND RESTATED CREDIT AGREEMENT

This Joinder to Amended and Restated Credit Agreement (this “Joinder”) is made as of this                    day of                   , by                    (the “New Borrower”), with its principal executive offices at                                     in consideration of the mutual covenants herein contained and benefits to be derived herefrom.

WITNESSETH:

A.Reference is made to the Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”), among The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), and the other borrowers party thereto (each a “Borrower”), the lenders from time to time party thereto (the “Lenders”), and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and Collateral Agent. Capitalized terms used herein but not defined herein shall have the meanings as set forth in the Amended and Restated Credit Agreement.

B.The New Borrower is a newly formed or acquired, direct or indirect domestic Subsidiary of the Company.

C.Pursuant to Section 5.12 of the Amended and Restated Credit Agreement, each such Subsidiary that is formed or acquired after the Effective Date is required to become a party to the Amended and Restated Credit Agreement if it is to become a Borrower. The undersigned New Borrower is executing this Joinder in accordance with the requirements of the Amended and Restated Credit Agreement to become a Borrower under the Amended and Restated Credit Agreement in order to induce the Lenders to make additional Loans, the Issuing Bank to issue additional Letters of Credit and as consid eration for Loans previously made and Letters of Credit previously issued.

NOW, THEREFORE, in consideration of the premises, the parties hereto hereby agree as follows:

1. Joinder to Amended and Restated Credit Agreement. Effective as of the date of this Joinder, the New Borrower hereby acknowledges that it has received and reviewed a copy of the Amended and Restated Credit Agreement and other Loan Documents, and acknowledges and agrees to:

a.join in the execution of, and become a party to, the Amended and Restated Credit Agreement as a Borrower, as indicated with its signature below;

b.be bound by all representations, warranties, covenants, agreements, liabilities and acknowledgments of a Borrower under the Amended and Restated Credit Agreement with the same force and effect as if such New Borrower was a signatory to the Amended and Restated Credit Agreement and was expressly named as a Borrower therein; and

2.Representations and Warranties. The New Borrower represents and warrants that the representations and warranties made by it as a Borrower thereunder are true and correct on and as of the date hereof, except to the extent a representation and warranty expressly relates solely to a specific date, in which case such representation and warranty shall be true and correct on such date. To the extent that any changes in any representations, warranties, and covenants require any amendments to the Schedules to the Amended and Restated Credit Agreement, such Schedules are hereby updated, as evidenced by any supplemental Schedules (if any) annexed to this Joinder.

3.Ratification of Amended and Restated Credit Agreement. Except as specifically amended by this Joinder and the other documents executed and delivered in connection herewith, all of the terms and conditions of the Amended and Restated Credit Agreement shall remain in full force and effect as in effect prior to the date hereof, without releasing any obligors thereon or collateral security therefore.

4. Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Administrative Agent:

a.This Joinder shall have been duly executed and delivered by the respective parties hereto, and shall be in full force and effect and shall be in form and substance satisfactory to the Administrative Agent.

b.All action on the part of the New Borrower necessary for the valid execution, delivery and performance by such New Borrower of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.

c.The New Borrower shall have delivered the following to the Administrative Agent, in form and substance satisfactory to the Administrative Agent:

i.Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.

ii.Certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Amended and Restated Credit Agreement, and attesting to the true signatures of each Person authorized as a signatory to the Amended and

Restated Credit Agreement, together with true and accurate copies of all organizational documents.

d.The Administrative Agent shall have received a favorable written legal opinion of the New Borrower’s counsel addressed to the Administrative Agent and the other Secured Parties, covering such matters relating to the New Borrower, the Amended and Restated Credit Agreement, and/or the Loan Documents as the Administrative Agent shall reasonably request.

e.The New Borrower shall (i) have become a party to (A) the Amended and Restated Credit Agreement; (B) the Indemnity, Subrogation and Contribution Agreement; (C) the Security Agreement; (D) the Pledge Agreement; and (E) any other such other documents as the Administrative Agent may require, in each case in the manner provided therein and within ten (10) Business Days after such Subsidiary is formed or acquired; and (ii) if any Equity Interests of such New Borrower are owned by or on behalf of any Loan Party, th e Company shall have pledged such Equity Interests pursuant to the Pledge Agreement (excluding, if such Subsidiary is a Foreign Subsidiary, shares of voting stock of such Subsidiary).

f.The Administrative Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements and results of all lien searches, required by law or reasonably requested by the Administrative Agent or the Required Lenders to create or perfect the first priority Liens intended to be created under the Security Agreement and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Administrative Agent.

All costs and expenses incurred by the Administrative Agent in connection with the preparation and negotiation of this Joinder and related documents (including the fees and expenses of counsel to the Administrative Agent) shall have been paid in full.

h.The New Borrower shall have executed and delivered to the Administrative Agent such additional documents, instruments, and agreements as the Administrative Agent may reasonably request.

5.Miscellaneous.

a.This Joinder may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument.

b.This Joinder expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.

c.Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not effect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder.

d.The New Borrower shall pay all out-of-pocket costs and expenses of the Administrative Agent, including, without limitation, reasonable attorneys’ fees and expenses in connection with the preparation, negotiation, execution and delivery of this Joinder.

e.The New Borrower warrants and represents that New Borrower has consulted with independent legal counsel of their selection in connection with this Joinder and are not relying on any representations or warranties of the Administrative Agent, the Lenders, or their respective counsel in entering into this Joinder.

6. THIS JOINDER 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).

[Signature Pages to Follow]

The undersigned hereby signs, executes, and delivers this Joinder Agreement as per Section 5.12 of the Amended and Restated Credit Agreement.

NEW BORROWER

B y:

Name:

Title:

Acknowledged, and to the to the extent required under the Section 5.12 of the Amended and Restated Credit Agreement, consented to by:

THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC., as the Company

By:

Name:

Title:

Acknowledged, and to the to the extent required under the terms of Section 5.12 the Amended and Restated Credit Agreement, consented to by:

BANK OF AMERICA, N.A., as
Administrative Agent and Collateral Agent

By:

Name:

Title:

EX-10.5

Exhibit 10.5

EXECUTION VERSION

SECURITYAGREEMENT

Dated as of August 4, 2009

among

THE GREAT ATLANTIC& PACIFICTEA 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	6
Section 1.02	Definition of Certain Terms Used Herein	6
Section 1.03	Rules of Interpretation	16
ARTICLE II
SECURITY INTEREST
Section 2.01	Security Interest	16
Section 2.02	No Assumption of Liability	16
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01	Title and Authority	17
Section 3.02	Filings	17
Section 3.03	Validity of Security Interest	17
Section 3.04	Absence of Other Liens	18
Section 3.05	[Reserved]	18
Section 3.06	Claims	18
Section 3.07	Instruments and Chattel Paper	19
Section 3.08	Securities Accounts and Commodity Accounts	19
Section 3.09	Electronic Chattel Paper and Transferable Records	19
Section 3.10	Fair Labor Standards Act	19
ARTICLE IV
COVENANTS
Section 4.01	Change of Name; Location of Collateral; Records; Place of Business	19
Section 4.02	Periodic Certification	19
Section 4.03	Protection of Security Interest	20
Section 4.04	Further Assurances	20
Section 4.05	Inspection and Verification	21
Section 4.06	Taxes; Encumbrances	21
Section 4.07	Assignment of Security Interest	21
Section 4.08	Continuing Obligations of the Grantors	21
Section 4.09	Use and Disposition of Collateral	21
Section 4.10	Limitation on Modification of Accounts	22
Section 4.11	Insurance	22
Section 4.12	Legend	22
Section 4.13	Covenants Regarding Patent, Trademark and Copyright Collateral	22
Section 4.14	Warehouse Receipts	24
Section 4.15	Claims	24
Section 4.16	Other Actions	24
Section 4.17	Joinder of Additional Grantors	26

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ARTICLE V
COLLECTIONS
Section 5.01	Accounts			26
Section 5.02	Collections			27
Section 5.03	Power of Attorney			28
ARTICLE VI
REMEDIES
Section 6.01	Remedies upon Default			29
Section 6.02	Application of Proceeds			32
Section 6.03	Grant of License to Use Intellectual Property and Other Property			32
ARTICLE VII
MISCELLANEOUS
Section 7.01	Notices			33
Section 7.02	Security Interest Absolute			33
Section 7.03	Survival of Agreement			33
Section 7.04	Binding Effect; Several Agreement			33
Section 7.05	Successors and Assigns			33
Section 7.06	Collateral Agent’s Fees and Expenses; Indemnification			33
Section 7.07	GOVERNING LAW			34
Section 7.08	Waivers; Amendment			34
Section 7.09	WAIVEROF JURY TRIAL			35
Section 7.10	Severability			35
Section 7.11	Counterparts			35
Section 7.12	Headings			35
Section 7.13	Jurisdiction; Consent to Service of Process			35
Section 7.14	Termination			36
Section 7.15	Headings and Recitals			36
Section 7.16	Intercreditor Terms Prevail			36
Section 7.17	Limitation on Duties of Collateral Agent			36
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
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

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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 1131890 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 Gr antor 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& #148;) 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&nb sp;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 Borrower s 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 collectivel y 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 lntercreditor 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 lntercreditor Agreement),ABL Hedging Obligations and obligations on account of other Bank Products (as defined in the lntercreditor 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:

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ARTICLEI

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 re medy 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.

6

“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 5.0Ha) 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 6.0Hc) 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,

7

(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

8

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

9

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.l6(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 Co llateral 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.

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“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 Sections9- 406,9-407,9-408or 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 consentor establishes any other conditions for, an assignment there of, 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 president-finance, vice-president-financial 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 se cure payment by an Account Debtor of any of the Receivables.

“Goods” shall have the meaning given that term in the UCC.

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“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.

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“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

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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.

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“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 2.0I.

“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

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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 1.03Rules 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 UC C.

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
REPRESENTATIONSAND WARRANTIES

The Grantors jointly and severally represent and warrant to the Collateral Agent and the Secured Parties that:

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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 Collate ral 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

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statement or analogous document in the United States(or any political subdivision thereot) 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 Section4.16  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 Section9-106 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 3.04Absence of Other Liens. The Collateral is owned by the Grantors free and clear of any Lien, except for Liens expressly permitted pursuant to Section4.10 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 Section4.10 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 3.06Claims. 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.

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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 4.01Change 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 cha nge 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

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Section 4.1 9(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 Stat es 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 G rantor 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). Up on 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

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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 fr om 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

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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 even t 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

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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 d o 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

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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 i n 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 4.1 6(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

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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 20I of t he 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 Cre dit 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 JPMo rgan 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 31,2009and 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

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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.l6(e)(ii) with respect to such Deposit Account (except to the extent such Deposit Account is a De Minimis Deposit Account). “De Mi nimis 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 obligati ons 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

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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 there of 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 Section5.02, 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 Grant or’s receipt there of.

(vii) All payments by any Grantor into any Blocked Account or the Agent’s Account pursuant to this Section5.01  or Section5.02, 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 depositor 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 Receipt son 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 Section4.16(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 Section4.16(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 Section5.14 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.

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(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 Section5.14 of the ABL Credit Agreement or other analogous provisions 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 shal l 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).

(Hi) 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 4.1 6(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,(H) upon the occurrence and during the continuance of an Event of Default,(A) to take actions required to be taken by the Grantors under Se ction 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

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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 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 Col lateral; (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 containe d 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 w ith 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

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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 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 comple tely 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 her eunder or apply it to the Obligations; and 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 P arty 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 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 rig ht 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

30

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 9-6 13 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; p rovided 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 adjourn ed.

(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 Seemed 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

31

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.

(I) As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suitor suits at law or in equity to foreclose upon the Collateral and to sell he 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 Section6.10 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 pu rchaser 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-licenseor other transaction entered into by the Collateral Agent in accordance

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herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default.

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 gua ranteeing 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 agre ement 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

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severally agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable 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 Indemni tee, 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 e ffective 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.

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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 anyone 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

35

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.

Section7.14 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 statement sand similar documents which the Grantors shall reasonably request to evidence such termination.  Any execution and delivery of termination statements or documents pursuant to this Section7.14 shall be without recourse to or warranty by the Collateral Agen t. 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 Section4.09 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 nota 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), (xxvi i)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 Obligators, 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 PURSUANTTO THE INTERCREDITOR AGREEMENT, THE ABL COLLATERALAGENT HAS AGREED TO ACT AS AGENT AND

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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 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, charge s, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.

‘Signature Page to Security Agreement

IN WITNESSWHEREOF, 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 HAMILTONPROPERTY 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/ CHRISTOPER MCGARRY
Name:	Christopher McGarry
Title:	President
COMPASSFOODS, 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 MARKETSOF MARYLAND, INC. SUPER FRESH/SAV-A-CENTER, INC.

‘SignaturePage 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.

MCLEANAVENUEPLAZA CORP.

SPRINGLANE PRODUCECORP.

THE MEADOWSPLAZA DEVELOPMENTCORP.

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

‘SignaturePage 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

WILMINGTONTRUST COMPANY,
	as Collateral Agent
By:	/s/ Michael Oller
	Name:	Michael G. Oller, Jr.
	Title:	Assistant Vice President

‘SignaturePage to Security Agreement

Schedule I - Copyrights

None.

Schedule II- Licenses

None.

Schedule III - Patents

None.

Schedule IV - Trademarks

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

US TRADEMARKS

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
A&P (Design and color)	® 11/6/84	Class 42:  Retail Grocery Store Services	1,304,288 (73/454,363)	11/6/2014	Service Mark Certificate of Renewal Issued
A&P (Block Letters)	® 5/6/03	Class 35:  Retail Grocery Store Services	2,713,141 (76/390,443)	5/6/2013	Service Mark Filed:  4/03/02
AMAZE AWAY	® 7/18/06	Class 21:  Cleaning Tools, namely, Plastic-Based Cleaning Pads	3,118,336 (78/549,806)	7/18/2016	Filed:  1/19/05
AMERICA’S CHOICE	® 11/26/96	Class 29:  Frozen Fruits, Vegetables, Shortening, Fish, Soups and Soup Mixes	2,019,444 (74/232,200)	11/26/2016	Filed: 1/20/07:  Cert. of Renewal issued
		Class 30: Rice, Ice Cream, Spices, Salt, Puddings, Tea, Cookies, Breakfast Cereals, Bread And Other Bakery Products, Namely, Cake
AMERICA’S CHOICE	® 11/01/94	Class 29:  Prepared and Processed Fruits and Vegetables, Processed Olives, Ketchup, Mayonnaise, Salad Dressing, Pickles, Tomato Puree, Tomato Paste, Cooking Oil, Vegetable Oils, Cheese	1,861,428 (74/801,783)	10/25/2014	10/25/04:  Renewal Filed 11/26/04:  Cert. of Renewal issued
AMERICA’S CHOICE	® 10/25/94	Class 30:  Honey, Relish, Mustard, Barbecue Sauce, Sugar, Flour, Peanut Butter and Crackers	1,860,494 (74/801,784)	10/25/2014	10/22/04:  Renewal Filed 11/27/04:  Cert. of Renewal issued

1

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
AMERICA’S CHOICE	® 1/30/01	Class 1:  Rock Salt, Deicing Preparation S For Use On Exterior Surfaces, Namely, Driveways, Sidewalks, Entryways and Windows; Stain Repellents For Clothing, Upholstery and Carpeting; and Artificial Sweeteners	2,425,385(74/332,876)	1/30/2011	Filed:  11/19/92 § 8 Use Filed:  1/30/07 § 8 Acceptance:  4/4/07
		Class 6: Aluminum Foil
		Class 16: Paper and Plastic Products, Namely, Stationery and Envelopes; Napkins; Tissues; Paper Towels; Paper Bags; Toilet Paper; Plastic Wrap; Plastic Bags; Freezer Paper; Disposable Diapers
		Class 21:  Small Domestic Utensils; Namely, Cooking and Food Molds, Pot And Pan Scrapers, And Spatulas And Whisks; All-Purpose Portable Household Containers, Namely, Baskers, Mugs, Beverage Dispensers, Bottles Sold Empty, Bowls, Buckets, Cookware, Namely, Pots and Pans, Dinner Plates, Cups and Drinking Glasses; Brooms and Dusters, Namely, Cleaning Brushes And Squeegees; Toothbrushes; Cleaning Cloths, Cleaning and Scouring Pads and Steel Wool For Cleaning
		Class 25: Hosiery Sold Exclusively In Registrant’s Retail Outlets
		Class 29:  Fresh, Frozen and Canned Meats, Fish, Poultry and Game; Imitation Meat and Meat Extracts; Preserved, Dried and Cooked Fruits and Vegetables; Eggs; Milk; Margarine, Yogurt; Frozen Creamers; Sour Cream; Frozen Imitation Eggs; Edible Oils; Fruit Preserves; Pickles; Shelled and Roasted Nuts; Peanut Butter; Potato Chips
		Class 30:  Ice Cream and Ice Milk; Cocoa; Rice, Flour, Breakfast Cereal; Bread; Biscuits; Cakes; Pies; Pretzels; Popped Popcorn; Pizza, Pastas, Namely, Spaghetti, Macaroni, Vermicelli, Spaghetti, Fettucine, Ziti and Pasta Shells; Frozen Bagels, Waffles and Pancakes; Frozen Yogurt; Baking Powder and Soda; Coffee; Tea; Sugar; Corn Meal And Corn Starch, Fudge and Frosting Mixes; Marshmallow Cream; Spices; Extracts Used As Flavoring; Meat Tenderizers; Molasses And Pancake Syrup; Hominy Grits; Mustard; Catsup; Relish; Vinegar; Sauces and Gravy Mixes; and Chewing Gum
		Class 31:  Raw Unprocessed Nuts; Unpopped Popcorn; Fresh Fruits and Vegetables; Seeds; Live Plants and Flowers; and Pet Foods
		Class 34: Matches
AMERICA’S CHOICE	® 2/25/86	Class 29:  Packaged Frozen Sea Food	1,384,513 (73/514,986)	2/25/2016	Renewal Filed:  2/24/06

2

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
AMERICA’S CHOICE	® 10/18/05	Class 1: Film	3007194 (78/218,486)	10/18/2015	Use due:  10/18/2011
		Class 3: Bubble Bath, Baby Powder, Petroleum Jelly, Baby Wipes, Detergent, Fabric Softener, Starch, Toilet Bowl Cleaners, Shave Gel, Cotton Balls, Diswasher Detergent, Clothing Detergent, Cookware Scrubber, Anti-Bacterial Kitchen Cleansers, Drain Opener, Soap Pads, Deodorant, Glass Cleaner, Shower Cleaner, Bleach, Carpet Cleaner, Acrylic Floor Cleaner, Furniture Polish, Hand Sanitizer, Soap, Sanitary Wipes, Shampoo, Hair Conditioner, Oil, After Shave, Skin Lotion, Nail Polish, Sun Block Lotion and Sunscreen, Acne Wash, Aloe Lotion, Hair Detangler, Hair Gel, Nail Polish Remover, Ammonia
		Class 4: Lighter Fluid, Charcoal, Fire Logs, Fire Starter Sticks, Candles
		Class 5: Room Deodorizer, Gel and Powder Air Freshener
		Class 7: Vacuum Cleaner Bags
		Class 8: Razors, Plastic Knives, Spoons and Forks
		Class 9: Batteries, Disposable Cameras
		Class 11: Light Bulbs
		Class 16: Plastic Bowls, Plastic Knives, Plastic Forks, Plastic Spoons, Plastic Plates, Plastic Cups, Cloth Wipes, Straws, Vacuum Bags, Coffee Filters, Tape, Writing Paper, Flexible Straws, Cone Filters, Training Pants
		Class 20:  Drinking Straws and Flexible Drinking Straws
		Class 21: Latex Gloves, Chip Clips
		Class 28: Toy Vehicles, Namely, Tractor Trailers, Toys, Bubbles
		Class 29: Gelatin, Gelatin, Fat-Free Whipped Topping, Evaporated Milk, Instant Dry Milk, Pumpkin Seeds, Popcorn, Macaroni & Cheese, Pasta, Prepared Lasagna Dinner, Butter, Macaroni & Beef, Spaghetti & Meatball, Beef Ravioli, Marshmallow Fluff And Nut Sanwiches; Pre-Packaged Kids’ Meals
		Class 30: Granola Bar, Ice Cubes In A Poly Bag, Candy, Gum, Pancakes, Waffles, Frozen Pops, Semi-Sweet Chocolate Chips, Flaked Coconut, Cake Mix, Frosting, Brownie Mix, Corn Muffin Mix, Mints, Trail Mix, Lollipops, Sour Balls, Lemon Drops, Beer Barrel Candies, Gum Drops, Candied Orange Slices, Caramel Cups, Peanut Butter Cups, Fruit Snacks
		Class 31: Cat Litter
		Class 32: Canned and Bottled Fruit and Vegetable Juices, Grapefruit Juice, Apple Juice, Orange Juice, Frozen Juices
AMERICA’S CHOICE	® 8/09/05	Class 40:  Film Processing Services	2,983,134 (78/395,344)	8/9/2015	Service Mark Filed:  4/02/04

3

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
AMERICA’S COFFEE PROVIDER SINCE 1859	® 10/21/08	Class 30:  Coffee	3,522,886 (Suppl. Register)	Combined Section 8 & Renewal deadline to be filed during the year commencing 10/21/2017	SUPPLEMENTAL REGISTER: Section 8 deadline to be filed during year commencing 10/21/08
A TASTE OF ELEGANCE	® 10/17/06	Class 43:  Catering Services	3,158,364 (78/759,275)	10/17/2016 Use due 10/17/2011 - 10/17/2012
ATHENA	® 7/06/04	Class 8:  Razors and Razor Blades	2,861,651 (78/238,300)	7/6/2014	Filed:  4/16/03
AW’SOME O’S	® 12/26/06	Class 30:  Bakery desserts; Bakery goods; Bakery products; Bakery products, namely sweet bakery goods	3,189,114 (78/731,611)	12/26/2011	Filed:  10/12/05
B (stylized and/or with design)	® 5/12/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,156,236 (75/182,649)	5/12/2008	Best Cellars Filed:  10/11/96
BASICS	® 9/14/04	Class 35:  Retail Supermarket Services; Retail Pharmacy Services	2,884,450 (78/311,001)	9/14/2014	Service Mark Filed:  10/8/03
BEEF BEYOND BELIEF	® 11/14/06	Class 29:  Meat	3,172,122 (78/437,260)	11/14/16 Use due:  11/14/12	ITU Filed:  6/17/04 1/10/05:  Settlement Agreement — Quizno’s has agreed to cease and desist using mark.
BEST CELLARS	® 1/23/01	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages and Delicatessen, Bakery, Cqrry-out and Snack Food Items	2,422,415 (75/058,148)	1/23/2011	Best Cellars Filed:  2/15/96
BEYOND THE BEST	® 10/29/02	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,643,503 (75/861,646)	10/29/2012	Best Cellars Filed:  12/01/99

4

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
BEYOND THE SHELF	® 12/30/03	Class 35:  Retail store services and online retail ordering services over a global computer information network and retail mail order and catalog ordering services, featuring a wide variety of consumer goods, namely, groceries, personal health and beauty products, non-medicated over-the-counter drugs, baby supplies, pet food and supplies, vitamins and nutritional supplements, housewares, hardware, consumer electronics, educational software, computer games, computer accessories, music CDs, books, videos, toys, office and school supplies and sundry items.	2,800,401 (78/201,136)	12/30/2013 Use due:  12/30/08 - 12/30/09
BIG	® 4/07/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,149,859 (Suppl. Register)	4/7/2018	Best Cellars Filed:  10/11/96
BIG	® 1/02/07	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,191,120 (78/538,845)	1/2/2017	Best Cellars Filed:  12/28/04
BIG DEALS	® 9/26/95	Class 42:  Retail Supermarket Services	1,922,594 (74/176,206)	9/26/2015	Renewal filed:  9/26/05
BRILLIANT BUBBLES	® 1/27/04	Class 28:  Toys, namely Bubble-Making Wand and Solution Sets	2,808,673 (78/202,468)	1/27/2014	ITU
Bubble Icon (Design only)	® 5/5/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,154,639 (75/182,643)	5/5/2018	Best Cellars Filed:  10/11/96
BUILD A CAKE	™ Pending Filed: 2/13/06	Class 40:  Custom Cake Decorating Services	(78/813,067)		Publ. Date:  10/17/06 Opposition by Build-A-Bear Retail Management, Inc. CLL responded 4/18/07
CELLAR-TO-GO-GO	® 4/25/06	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,085,228 (78/622,476)	4/25/2016	Best Cellars Filed:  5/4/05

5

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
CHEFMARK	™ 9/25/08	Class 42:  Purveyance of Foods from a Delicatessen and/or appetizing section of Retail Supermarkets for off premises consumption.	(77/578,894)		Standard Character Mark Date of First Use:  6/00/1974 (taken from PM original logo of CHEFMARK & Design) Applicant:  Pathmark Stores, Inc.
Cherry Icon (Design only)	® 7/27/99	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,263,938 (75/182,602)	7/27/2009	Best Cellars Filed:  10/11/96
Citrus/Cantaloupes Icon (Design only)	® 7/13/99	Class 33:  Wines	2,260,200 (75/182,604)	7/13/2009	Best Cellars Filed:  10/11/96
Cloud Icon (Design only)	® 5/12/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,156,290 (75/193,043)	5/12/2018	Best Cellars Filed:  10/31/96
		Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages, T-Shirts, and Delicatessen, Bakery, Carry-out and Snack Food Items
CONCORDE	® 7/06/04	Class 8:  Razors and Razor Blades	2,861,650 (78/238,266)	7/6/2014	Filed:  4/16/03
Crescent Moon Icon (Design only)	® 5/12/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,156,289 (75/193,041)	5/12/2018	Best Cellars Filed:  10/31/96
EASY BRIGHT NIGHT	® 3/22/05	Class 3:  Tooth Whitening Gel	2,934,844 (78/324,523)	3/22/2015	Filed 11/7/03
EXPRESS YOURSELF	® 1/28/03	Class 35:  Retail Grocery Store Services in The Nature of A Self- Checkout Counter	2,680,997 (76/406,160)	1/28/2013 Use Filed:  1-28-09	Service Mark

6

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
(Stylized)	® 6/10/03	Class 35:  Retail Grocery Store Services	2,723,648 (76/386,568)	6/10/2013	Service Mark
		Class 43:  Catering and Takeout Delicatessen Services
FARMER JACK	® 3/01/88	Class 42:  Retail Supermarket Services	1,479,128 (73/664,142)	3/1/2008	Service Mark
FARMER JACK Logo (New)	® 8/17/04	Class 35:  Grocery Store Services	2,874,722 (78/269,618)	8/17/2014	Sevice Mark Filed:  7/02/03
FEEL LIKE A TRUE GORMET!	® 9/07/04	Class 35:  Retail Grocery Store and Delicatessen Services	2,881,606 (78/266,173)	9/7/2014	Service Mark Filed:  6/24/03
		Class 43:  Catering Services and Delicatessen Restaurants
FIZZY	® 7/25/06	Class 35:	3,119,391 (78/538,858)	7/25/2016	Best Cellars Filed:  12/28/04
FIZZY	® 4/27/99	Class 35:	2,242,184 (75/182,662)	4/27/2009	Best Cellars Filed:  10/11/96
FOOD BASICS	® 6/17/03	Class 35:  Retail Supermarket Services	2,726,744 (76/386,404)	6/17/2013

7

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
(Design and color)	® 9/23/03	Class 35:  Retail Supermarket Services	2,766,316 (76/386,781)	9/23/2013	Service Mark
FOR GOODNESS SHAKE	® 2/14/06	Class 5:  Protein Food Supplement; Dietary Drink Mix for Use in Meal Replacement in Powder and Liquid Form; Pre-mixed Liquid Meal Replacement Drinks; Dietary Meal Replacement Nutritional Bars	3,059,403 (78/235,016)	2/14/2016	ITU
FRESH	® 7/25/06	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,119,390 (78/538,848)	7/25/2006	Best Cellars Filed:  12/28/04
FRESH	® 5/18/99	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,246,761 (75/182,644)	5/18/2009	Best Cellars Filed:  10/11/96
FRESH CHALLENGE	® 4/19/05	Class 35:  Retail Grocery Store and Supermarket Services	2,942,219 (78/503,093)	4/19/2015	Service Mark Filed:  10/20/04
GIVE YOURSELF ANOTHER CHOICE	® 8/30/05	Class 35:  Retail Supermarket Services; Retail Pharmacy Services; Retail Liquor Store Services	2,989,404 (78/431,546)	8/30/2015	Service Mark Filed:  6/08/04
GRAPE FINDS	® 12/17/02	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,663,166 (76/392,260)	12/17/2012 Use due:  12/17/08 Grace Period:  6/17/09	Service Mark Filed:  4/08/02 Registrant:  Grape Finds of Dupont, Inc. (No Assignment to Best Cellars, Inc.)
Grape Icon (Design only)	® 8/24/99	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,271,317 (75/193,042)	8/24/2009	Best Cellars Filed:  10/31/96
GREAT WINES FOR EVERYDAY	® 1/27/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,133,521 (Suppl. Register)	1/27/2018	Best Cellars Filed:  10/11/96

8

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
GREAT WINES FOR EVERY DAY	® 12/20/05	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,032,255 (78/538,850)	12/20/2015	Best Cellars 12/28/04

9

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
GREEN WAY	™ 12/11/07	Class 29:  Olive Oil, Canned Tomatoes, Canned Beans, Broth, Soups, Applesauce, Jams, Fruit Preserves, Peanut Butter, Soybean Milk, Milk, Butter, Cheese, Frozen entrees consisting primarily of Meat or Cheese, Frozen Vegetables, namely, Corn, Peas, Broccoli, Cauliflower, Green Beans and Mixed Vegetables, Frozen Fruits, Pre-cut Vegetable Salad.	(77/349,246)		ITU — OWN BRANDS Filed:  12/11/07 Publ. 6/10/08 Opposition:  Publix
		Class 30:  Balsamic Vinegar, Pasta, Pasta Sauce, Salad Dressing, Salsa, Macaroni & Cheese, Breakfast Cereals, Coffee, Tortilla Chips, Cheese Flavored Snacks, namely, Cheese Puffs and Cheese Curls, Popcorn, Pretzels, Crackers, Cookies, Ravioli, Frozen Entrees consisting primarily of Rice or Pasta, Burritos, Enchiladas, Ice Cream, Ice Cream Sandwiches, Sorbets
		Class 31:  Fresh Vegetables
		Class 32:  Fruit Juices and Fruit Drinks, Soft Drinks
GREEN WAY	™ 2/29/08	Class 3:  Shampoos and hair conditioners; skin moisturizers; human body conditioners; skin treatment lotions and creams; anti-aging and stretch mark creams, lotions and creams for hands, nails, skin, face, hair, foot and leg muscles and joints; depilatory lotions and creams; shaving lotions and creams; non-medicated skin care preparation, namely, lotions and creams for treating dry and damaged skin, anti-aging, firming, anti-wrinkle, stretch marks, under eye and eyelid firming; gels, namely, depilatory gels, shaving gels, shower gels; oils, namely body oils, non-medicated human body serums; soaps; liquid soaps; bar soaps; anti-bacterial liquid soaps; anti-bacterial bar soaps; hand sanitizers; body washing soaps; bubble bath; bath and facial scrubs; masks namely, beauty masks, facial masks, body masks, gel eye masks, skin masks, and skin moisturizer masks; face peels, cosmetic sun protection creams and lotio ns, sun creams and lotions; sun block; soaps and detergents for household use for the purposes of cleaning and maintenance without harm to the environment.	(77/409,725)		ITU — OWN BRANDS Filed:  2/29/08 Publ. 5/6/08
		Class 5:  Dietary food supplements.
		Class 8:  Disposable forks, knives and spoons.
		Class 9:  Batteries.
		Class 11:  Compact fluorescent bulbs.
		Class 16:  Paper towels; paper table cloths; paper napkins; bathroom tissue; and facial tissues.
		Class 21:  Paper plates and cups.
		Class 29:  Frozen hamburger patties; seeds; nuts, dried fruits and/or raisins; trail mix; potato chips.
		Class 30:  Teas; sesame sticks; chocolate coated nuts; yogurt coated nuts; macaroni and cheese; pesto sauce; bread; tortillas; tortilla chips.
		Class 31:  Pet food.

10

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 32:  Soda
	® 12/09/08	Class 16:  Notebooks and Notebook Paper	3,544,867 (77/388,984)	12/9/2018 Use:12/9/2013—12/9/2014	ITU — OWN BRANDS S.N. 77/388,984 Filed:  2/5/08 Publ:  4/29/08 Allowance:  7-22-08

11

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
	™ 2/29/08	Class 3:  Shampoos and hair conditioners; skin moisturizers; human body conditioners; skin treatment lotions and creams; anti-aging and stretch mark creams, lotions and creams for hands, nails, skin, face, hair, foot and leg muscles and joints; depilatory lotions and creams; shaving lotions and creams; non-medicated skin care preparation, namely, lotions and creams for treating dry and damaged skin, anti-aging, firming, anti-wrinkle, stretch marks, under eye and eyelid firming; gels, namely, depilatory gels, shaving gels, shower gels; oils, namely body oils, non-medicated human body serums; soaps; liquid soaps; bar soaps; anti-bacterial liquid soaps; anti-bacterial bar soaps; hand sanitizers; body washing soaps; bubble bath; bath and facial scrubs; masks namely, beauty masks, facial masks, body masks, gel eye masks, skin masks, and skin moisturizer masks; face peels, cosmetic sun protection creams and lotio ns, sun creams and lotions; sun block; soaps and detergents for household use for the purposes of cleaning and maintenance without harm to the environment.	(77/409,787)		ITU — OWN BRANDS Filed:  2/29/08 Publ:  4/29/08 Allowance:  7-22-08 Statement of Use Due:  1/22/09 1st EOT — Use Due:  7/22/09
		Class 5:  Dietary food supplements.
		Class 8:  Disposable forks, knives and spoons.
		Class 9:  Batteries.
		Class 11:  Compact fluorescent bulbs.
		Class 16:  Paper towels; paper table cloths; paper napkins; bathroom tissue; and facial tissues.
		Class 21:  Paper plates and cups.
		Class 29:  Frozen hamburger patties; seeds; nuts, dried fruits and/or raisins; trail mix; potato chips; olive oil, canned tomatoes; canned beans; broth; soups; applesauce; jams; fruit preserves; peanut butter; soybean milk; milk; butter; cheese; frozen entrees consisting primarily of meat or cheese; frozen vegetables namely, corn, peas, broccoli, cauliflower, green beans, mixed vegetables; frozen fruits; pre-cut vegetable salad.

12

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 30:  Teas; sesame sticks; chocolate coated nuts; yogurt coated nuts; macaroni and cheese; pesto sauce; bread, balsamic vinegar; pasta; pasta sauce; salad dressing; salsa; macaroni & cheese; breakfast cereals; coffee; tortilla chips; cheese flavored snacks namely, cheese puffs and cheese curls; popcorn; pretzels; crackers; cookies; ravioli; frozen entrees consisting primarily of rice or pasta, burritos; enchiladas; ice cream; ice cream sandwiches; sorbets; tortillas; tortilla chips.
		Class 31:  Pet foods; fresh vegetables
		Class 32:  Soda, fruit juices and fruit drinks
(Stylized)	® 3/29/83	Class 1: Artificial Sweetener	1,232,381 (73/277,359)	3/29/2013	OTC Product Line (Pharmacy?)
		Class 3:  Mouthwash, Baby Oil, Baby Powder and Toothpaste
		Class 5:  Rubbing Alcohol, Petroleum Jelly, Epson Salts, Hydrogen Peroxide for Use as a Disinfectant, Aspirin, Cotton Swabs and Adhesive Bandages
		Class 10:  Dental Floss
HARTFORD RESERVE	™ 2/28/08	Class 1:  Artificial Sweetners	(77/408,926)		ITU — OWN BRANDS Filed:  2/28/08 Opposition pending:  Lewis Bros’
		Class 29:  Frozen and/or canned meats, fish, poultry and game; imitation meat and meat extracts; preserved, dried and/or frozen fruits and vegetables; prepared and processed fruits and vegetables; edible oils, cooking and vegetable oils; processed olives; fruit preserves; namely jellies and/or jams; shelled, roasted and/or processed nuts; snack foods, namely, candied-fruit based fruit snacks, dairy-based snack foods (excluding ice cream ice milk and frozen yogurt), dehydrated fruit snacks, fruit and/or soy based snack foods, meat based snack foods, potato based snack foods, protein based nutrient dense snack bars, vegetable based snack foods and snack dips; snack mix consisting primarily of processed fruits, processed nuts, and/or raisins; soups and broth; pre-packaged dinners consisting primarily of meat, seafood or poultry served with pasta, or rice and/or vegetables

13

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 30:  Crackers and or rice crackers; food package combinations consisting primarily of bread, crackers and/or cookies; snack mix consisting primarily of crackers, pretzels, candied nuts and/or popped popcorn; chocolate and chocolates, chocolate bars, chocolate candies, chocolate chips, and chocolate truffles, chocolate covered nuts and raisins and chocolate covered potato chips; cocoa; cookies; breakfast cereals, pastas; meat tenderizers; mustard; vinegar; barbecue sauce; frozen, prepared or packaged entrees consisting primarily of pasta or rice; dough based sandwiches with filling consisting primarily of pasta or rice; dried cooked rice, enriched rice, husked rice and/or puffed rice; rice based snack foods, wholemeal rice and unprocessed rice; coffee, namely, roasted, powdered or granulated coffee, coffee beans, ground coffee beans, instant coffee and caffeine-free coffee; tea, namely, tea bags, teas for infusions and caffeine free tea; herbal tea, black tea, green tea, lime tea and sage tea; ice cream; frozen yogurt; marinades
		Class 32:  Fruit drinks and juices, namely apple, grape, cranberry; orange, grapefruit, tomato and/or vegetable juice and juice beverages; fruit juice based and concentrates and aerated fruit juices

14

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
HYBREED	™ 12/06/06	Class 5:  Medicated products for use for animals, namely, flea and tick medications and collars.	(77/057,971)		Notice of Allowance Issued: 8/14/07 Statement of Use/1st EOT: 2/14/08
		Class 18:  Pet and animal accessories, namely, carriers, game bags, harnesses, hides, leashes, skins, clothing, leggings, collars, electronic collars, collar accessories, namely, bows, charms, and bells.
		Class 28:  Pet toys.
		Class 31:  Pet food; food for animals; pet treats.
HYBREED BASIC	™ 12/06/06	Class 5:  Medicated products for use for animals, namely, flea and tick medications and collars.	(77/058,024)		Notice of Allowance Issued: 8/14/07 Statement of Use/1st EOT: 2/14/08
		Class 18:  Pet and animal accessories, namely, carriers, game bags, harnesses, hides, leashes, skins, clothing, leggings, collars, electronic collars, collar accessories, namely, bows, charms, and bells.
		Class 28:  Pet toys.
		Class 31:  Pet food; food for animals; pet treats.
HYBREED PROVANTAGE	™ 12/06/06	Class 5:  Medicated products for use for animals, namely, flea and tick medications and collars.	(77/058,034)		Notice of Allowance Issued: 11/13/07 Statement of Use/1st EOT: 5/13/08
		Class 18:  Pet and animal accessories, namely, carriers, game bags, harnesses, hides, leashes, skins, clothing, leggings, collars, electronic collars, collar accessories, namely, bows, charms, and bells.
		Class 28:  Pet toys.
		Class 31:  Pet food; food for animals; pet treats.
I LOVE THIS STORE!	® 4/18/06	Class 35:  Retail Grocery Store, Liquor Store and Pharmacy Services	3,081,109 (76/424,332)	4/18/2016	ITU — Service Mark Filed:  6/24/02

15

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
JANE PARKER	® 1/01/08	Class 30:  Bakery desserts; Bakery goods; Bakery products; Bakery products, namely sweet bakery goods	3,363,303(78/692,338)	1/1/2018 Use due: 1/01/14	ITU Publ:  2/6/07 Statement of Use due:  11/1/07
JUICY	® 5/04/99	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,243,937 (75/182,646)	5/4/2009	Best Cellars Filed:  10/11/96
JUICY	® 1/24/06	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,050,162 (78/538,852)	1/24/2016	Best Cellars Filed:  12/28/04
Lips Icon (Design only)	® 12/11/07	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	3,350,671 (76/661,658)	12/11/2017	Best Cellars Filed:  6/14/06
LIVE BETTER  WELLNESS CLUB	® 6/24/08	Class 35:  Retail Store Services in the Field of Pharmaceuticals featuring a Bonus Incentive Program for Customers	3,452,346 (77/185,766)	6/24/2018 Use due:  6/24/13 - 6/24/14	Service Mark — PHARMACY Filed:  5/21/07
	® 8/26/08	Class 35:  Retail Store Services in the Field of Pharmaceuticals featuring a Bonus Incentive Program for Customers	3,491,210 (77/857,766)	8/26/2018 (Use due:  8/26/2013 — 8/26/2014)	Service Mark & Design — PHARMACY S.N. 77/185,766 Filed:  5/21/07 Publ:  3/04/08
Lollipop Icon (Design only)	® 5/12/98	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,156,235 (75/182,603)	5/12/2018	Best Cellars Filed:  10/11/96

16

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
LULLA-BEES	™ 12/06/06	Class 3:  Cosmetic products for infants and babies, namely, baby hair conditioner, hair conditioners for babies, baby shampoo, shampoo for babies, baby lotion, lotion for babies, baby oil, baby powder, baby wipes.	(77/058,043)		Suspended pending disposition of Application S.N. 78/902,922 for LULLABUGS and S.N. 78/913,386 for LULLABEARS Published for Opposition:  10/28/08
		Class 5:  - Baby food; powdered milk for babies; infant formula.
		Class 10:  - Devices for babies, namely, baby bottle nipples, baby bottles, baby nursers, cups adapted for feeding babies and children, teething rings.
		Class 16: - Baby diapers of paper; disposable diapers; paper diapers; disposable training pants.
		Class 25: - Cloth diapers; infant cloth diapers; non-disposable cloth training pants.
		Class 28:  - Baby toys, namely, rattles, multiple activity toys.
LULLA-BEES & Design	™ 12/06/06	Class 3:  Cosmetic products for infants and babies, namely, baby hair conditioner, hair conditioners for babies, baby shampoo, shampoo for babies, baby lotion, lotion for babies, baby oil, baby powder, baby wipes.	(77/058,057)		Suspended pending disposition of Application S.N. 78/902,922 for LULLABUGS and S.N. 78/913,386 for LULLABEARS Published for Opposition:  10/28/08
		Class 5:  - Baby food; powdered milk for babies; infant formula.
		Class 10:  - Devices for babies, namely, baby bottle nipples, baby bottles, baby nursers, cups adapted for feeding babies and children, teething rings.
		Class 16: - Baby diapers of paper; disposable diapers; paper diapers; disposable training pants.
		Class 25: - Cloth diapers; infant cloth diapers; non-disposable cloth training pants.
		Class 28:  - Baby toys, namely, rattles, multiple activity toys.

17

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
LULLA-BEES & Design	™ 12/06/06	Class 3:  Cosmetic products for infants and babies, namely, baby hair conditioner, hair conditioners for babies, baby shampoo, shampoo for babies, baby lotion, lotion for babies, baby oil, baby powder, baby wipes.	(77/058,072)		Suspended pending disposition of Application S.N. 78/902,922 for LULLABUGS and S.N. 78/913,386 for LULLABEARS Published for Opposition:  10/28/08
		Class 5:  - Baby food; powdered milk for babies; infant formula.
		Class 10:  - Devices for babies, namely, baby bottle nipples, baby bottles, baby nursers, cups adapted for feeding babies and children, teething rings.
		Class 16: - Baby diapers of paper; disposable diapers; paper diapers; disposable training pants.
		Class 25: - Cloth diapers; infant cloth diapers; non-disposable cloth training pants.
		Class 28:  - Baby toys, namely, rattles, multiple activity toys.
MARKET SPA	™ 8/11/08	Class 3:  Shampoos and hair conditioners; Hair Care preparations; Facial Lotions; Body Lotions; Beauty Lotions; Skin Moisturizers; Non-Medicated Skin Care Preparations, Soaps for Personal Use; Nail Polish Removers; Cotton Balls for cosmetic purposes and all purpose cotton swabs for personal use	(77/543,985)		Intent to Use Publ. Date:  3/10/09 Allowed:  6/02/09 Use Due:  12/02/09

18

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
MASTER CHOICE	® 6/29/04	Class 29:  Beef, Canned Tomatoes, Canned Vegetables, Cheese, Condensed Milk, Cooking Oil, Fish, Frozen Entrees, Frozen Vegetables, Jelly Preserves, Peanut Butter, Pickles, Popcorn, Pork, Poultry, Roasted Peppers, Seafood, Shelled & Roasted Nuts, Tuna	2,857,946(78/218,673)	6/29/2014 Use Due:  6/29/09	Filed:  2/25/03
		Class 30:  Apple Cider Mix, Baking Cocoa, Belgian Waffles, Breads, Breadsticks, Breakfast Cereal, Brownie Mix, Candy, Cappuccino Mix, Cheesecakes, Chocolate Baking Chips, Cookies, Crackers, Flatbreads, Fruitcake, Hot Cocoa Mix, Ice Cream, Maple Syrup, Mayonnaise, Microwave Popcorn, Mustard, Pasta Pies, Pizza, Rice, Salad Dressing, Salsa, Sauces, Spices, Tea, Vinegar, Waffle Cones
		Class 31:  Fresh Fruits, Fresh Vegetables
		Class 32:  Drinking Water, Fruit Juice, Vegetable Juice
(Stylized)	® 6/24/97	Class 29:  Cheese, Cooking Oil, Nuts, Canned Tomatoes, Frozen Vegetables, Tuna, Pork, Beef	2,073,501 (75/070,346)	6/24/2007	Filed:  3/11/96
		Class 30:  Mayonnaise, Rice, Mustard, Salsa, Sauces, Spices, Cookies, Breadsticks, Flatbreads, Fruitcake, Pasta, Breakfast Cereals, Condensed Milk, Cheesecales, Pies, Pizza, Tortilla Chips, Hot Cocoa Mix
		Class 32:  Fruit Juice, Vegetable Juice, Drinking Water, Soft Drinks
(Miscellaneous Design)	® 12/15/81	Class 42:  Retail Supermarket Services	1,182,561 (73/276,030)	12/15/2011	FARMER JACK 2/14/02:  Renewed for 10 years
MORE	™ 8/01/06	Class 3: potpourri, home fragrance infuser, namely, fragrance emitting receptacles for room fragrances; bath oils, bath milks, bath powder, bath salts	(78/942,221)		MARKETING:  Anke Kullenberg/Suzanne Cecchi 6/30/09:Statement of Use filed. Publ:  2/12/08
		Class 4:  candles

19

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 6:  metal tins
		Class 7:  electric coffee bean grinders, electric food blenders, electric juicers, electric can openers
		Class 8:  non-electric fruit and vegetable peelers, cooking graters, apple corers, pizza wheel cutters, cheese planes, grapefruit trimmers, non-electric kitchen knives, zesters, egg slicers, meat tenderizers, namely, a pronged instrument for pounding meat, nut crackers not of precious metal, seafood crackers, ice scrapers, non-electric garden tools, namely, spades, tillers, trowls, garden supplies, namely hoses and nozzles, non-electric can openers
		Class 11:  electric coffee makers, electric coffee percolators, hot plates, electric kettles, blenders, electric juicers, outdoor lighted Christmas ornaments, chocolate fountains
		Class 21:  Kitchen utensils, namely, cutting boards, oven mitts, pie servers, jar openers, ice cream scoops, bottle openers, non-electric can openers, garlic presses, turners, spatulas, cooking spoons, cooking forks, potato mashers, whisks, basting brushes, bagel holders not being slicers, coffee scoops, corkscrews, corn cob holders, melon ballers, pepper mills, salt shakers, cooking strainers, turkey basters, and barbecue utensils…
		Bathroom wash basins, electric tooth brushes, soap dishes, tooth brush holders, towel racks, toilet paper holders, shower caddies, ceramic tissue box covers, hampers
		Class 24:  bed sheets, towels, bed and bath linen, pillowcases, bed blankets, cloth napkins, cloth placemats, pet blankets, table cloths not made of paper, fabric table runners, bath mitts, oven mitts
		Class 26:  ribbons, artificial garland, artificial Christmas wreaths
		Class 27:  door mats
		Class 28:  stuffed toys, Christmas stockings, tree skirts, tree stands, Christmas tree ornaments, Christmas hats, wooden decorative sleds
		Class 31:  pine cones, artificial Christmas trees, edible pet treats, dried flower wreaths

20

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
MORE (OF WHAT’S SPECIAL)	™ 8/16/06	Class 4: candles	(78/953,659)		MARKETEING:  Anke Kullenberg, Suzanne Cecchi Use due:  4/14/09 EOT/Use Due:  10/14/09
		Class 21: Kitchen utensils, namely, cutting boards, pie servers,  jar openers, ice cream scoops, bottle openers, non-electric can openers, garlic presses, turners, spatulas, cooking spoons, cooking forks, potato mashers, whisks, basting brushes, bagel holders (not being slicers), coffee scoops, corkscrews, corn cob holders, melon ballers, pepper mills, salt shakers, cooking coolers, napkin holders, candle holders (not of precious metal), plates, cookery molds, napkin rings (not of precious metal),  picture frames, pet feeding dishes, wine glasses, ceramic sculptures, vases, bowls, tea pots (not metal), metal buckets, salad serving tongs.      Bathroom accessories, namely wash basins, electric tooth brushes, soap dishes, tooth brush holders, towel racks, toilet paper holders, shower caddies; ceramic tissue box covers .
		Class 24: Household linen, namely bed sheets, kitchen towels, bed and bath linen, pillowcases, bed blankets, cloth napkins, cloth placemats, pet blankets, table cloths (not made of paper), fabric table runners, bath mitts, oven mitts.
MORE (FOR ALL SEASONS)	® 8/12/08	Class 3: potpourri, home fragrance infuser, namely, fragrance emitting receptacles for room fragrances; bath oils, bath milks, bath powder, bath salts	3,486,531 (78/953,732)	8/12/18 (Use due:  8/12/13 — 8/12/14)	Anke Kullenberg, Mktg. S.N. 78/953,732 Filed:  8/16/06
		Class 4: candles
		Class 6: decorative tins made of metal
		Class 7: electric coffee bean grinder; electric food blenders, electric can openers; electric juicers

21

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 8: Hand tools, namely, non-electric fruit and vegetable peelers, cooking graters, apple corers, pizza wheel cutters, cheese planes, grapefruit trimmers, non-electric kitchen knives, zesters, egg slicers, meat tenderizers, namely, a pronged instrument for pounding meat; seafood crackers (not of precious metal); ice scrapers; non-electric garden tools, namely spades, tillers, trowls; garden supplies, namely hoses and nozzles; non-electric can openers.
		Class 11: Electric coffee makers; electric coffee percolators; hot plates; electric kettles; blenders, outdoor lighted Christmas ornaments; electric light for Christmas trees; chocolate fountains.
		Class 21: Kitchen utensils, namely, cutting boards, pie servers,  jar openers, ice cream scoops, bottle openers, non-electric can openers, garlic presses, turners, spatulas, cooking spoons, cooking forks, potato mashers, whisks, basting brushes, bagel holders (not being slicers), coffee scoops, corkscrews, corn cob holders, melon ballers, pepper mills, salt shakers, cooking coolers, napkin holders, candle holders (not of precious metal), plates, cookery molds, napkin rings (not of precious metal),  picture frames, pet feeding dishes, wine glasses, ceramic sculptures, vases, bowls, tea pots (not metal), metal buckets, salad serving tongs; Garden supplies, namely hose nozzels, cooking graters
		Bathroom accessories, namely wash basins, electric tooth brushes, soap dishes, tooth brush holders, towel racks, toilet paper holders, shower caddies; ceramic tissue box covers.
		Class 24: Household linen, namely bed sheets, kitchen towels, bed and bath linen, pillowcases, bed blankets, cloth napkins, cloth placemats, pet blankets, table cloths (not made of paper), fabric table runners, bath mitts, oven mitts.
		Class 26: Ribbons; artificial garland; artificial wreaths
		Class 27: Door Mats
		Class 28:  stuffed toys, Christmas stockings, tree skirts, tree stands, Christmas tree ornaments, Christmas hats, wooden decorative sleds
		Class 31:  pine cones, artificial Christmas trees, edible pet treats, dried flower wreaths

22

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
NO SO	™ 10/17/08	Class 32:  Juice beverages, namely, fruit juices	(77/595,210)		ITU — OWN BRANDS Publ. Date:  3/10/09 Allowed:  6/02/09 Use Due:  12/02/09
NO FRILLS	® 5/25/82	Class 29:  Canned peaches, canned tomatoes, canned corn, canned green beans, canned sweet peas, canned pork and beans, corn oil, vegetable oil, applesauce and peanut butter	1,196,041 (73/165,881)	5/25/2012	Renewed:  5/25/02
		Class 30:  Table syrup
ONPOINT	™ Pending	Class    : Sales, Marketing and Distribution and Related Services	(77/476,914)		ITU — OWN BRANDS Filed:  5/19/08
PATHMARK	® 8/06/68	Class 35:  Retail food supermarket services	0,854,358 (72/285,701)	8/6/2018	Renewed:  8/06/88                 8/06/08
PATHMARK	® 5/27/69	Class 3:  Mouthwash and hair tonic	0,870,210 (72/295,831)	5/27/2009	Renewed:  5/27/89
PATHMARK	® 1/21/03	Class 32:  Soft drinks	2,677,310 (76/361,018)	1/21/2013 Use filed: 1/21/09

23

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
PATHMARK & Design	® 8/24/71	Class 35:  Retail food supermarket services	0,919,137(72/324,945)	8/24/2011	Renewed:  8/24/91                 8/24/01
PATHMARK & Design	® 2/24/76	Class 42:  Retail drug store services	1,034,492 (73/055,400)	2/24/2016	Renewed:  2/24/96                 2/24/06
PATHMARK GOSPEL CHOIR COMPETITION	™ 4/16/09	Class 35:  Promoting and sponsoring community events to promote equality and community mindedness.	(77/715,300)		Use based “trade name” Debbie Ortega (PM) Suzanne Cecchi (Marketing)
PATHMARK HELPING HANDS IN THE COMMUNITY & Design	® 5/08/07	Class 36:  Charitable fund raising	3,240,786 (78/978,145)	5/08/2017 (Use due:  5/08/2012 — 5/08/2013)	Filed as ITU originally; S.N. 78/978,145 Filed:  11/10/2004 PM first used in commerce 11/01/2004
		Class 41:  Charitable services, namely, soliciting, collecting and providing toys for needy children
		Class 45:  Charitable services, namely, soliciting, collecting and providing clothing for needy persons

24

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
PATHMARK HELPING HANDS IN THE COMMUNITY & Design	® 3/24/09	Class 43:  Charitable services, namely, soliciting, collecting and providing food for needy persons	3,596,521 (78/514,359)	3/24/2019 Use due: 3/24/2014	S.N. 78/514,359 Filed:  11-10-04
PATHMARK PARLOR FAVORITES	™ 2/23/07	Class 30:  Ice cream	(77/114,803)		Published:  12/19/07
PATHMARK SHAKERS	™ 3/21/07	Class 32:  Powders used in the preparation of soft drinks	(77/136,870)		Suspended 12/19/07 pending disposition of Application S.N. 77/136,487 for PROTEIN SHAKERS & Design
PREFERRED PET	® 7/14/09	Class 18:  Rawhide Chews for Dogs; Pet Collars; Pet Leashes; Pet Travel Cases	3,655,878 (77/977,324)		ITU — OWN BRANDS Filed:  3/31/08
		Class 28:  Pet Toys
		Class 31:  Pet Food; Cat Litter; Edible Pet Treats
		DIVIDED OUT:  Class 3:  Pet Shampoos                   Class 20:  Pet Beds                   Class 21:  Pet Hair Brushes
RED ALARM	® 2/01/05	Class 32:  Soft Drinks	2,924,218 (78/220,193)	10/1/2015 Use due: 8/01/10	Filed:  2/28/03

25

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
SMART PRICE	™ 4/13/06	Class 3 - Bleaching preparations for household use and other substances for laundry use, namely, laundry detergent; cleaning and polishing preparations for household purposes, pet stain and odor removers, combination cleaner and deodorizer for litter boxes; scouring preparations, namely, scouring liquids and scouring powders, abrasive preparations, namely, abrasive paste; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices; non-medicated sun care preparations; non-medicated skin care preparations; baby wipes; cosmetic puffs, namely, synthetic cotton balls; non-medicated shampoos for pets; toothpaste for pets; dental cleaning kits for pets.	(78/860,925)
		Class 5 - Full line of over-the-counter pharmaceutical preparations; veterinary preparations and medicated products for household pet animals, namely, preparations for the control of aches, pains, soreness and stiffness, preparations for the control of insects and parasites, collars for the control of insects, skin care preparations, ear care preparations, eye care preparations, hairball remedies, behavior training sprays and pads, incontinence pads, vitamin preparations; sanitary preparations for medical purposes and medical personal hygiene purposes; dietetic foods adapted for medical use; food for babies; medical plasters, bandages and gauze for dressings; material for stopping teeth, dental wax; disinfectants for medical instruments and for sanitary purposes; preparations for destroying vermin; fungicides, herbicides.
		Class 6 - Aluminum foil; goods of common metal, namely, general purpose storage containers, hooks, key rings, key chains.
		Class 11 - Light bulbs, heating pads not for medical purposes, electric hand-held hair dryers, water filters, shower heads, shower head sprayers, and faucet sprayers.
		Class 16 - Writing paper, envelopes, writing tablets, notebooks, notebook dividers, calendars, diaries, transparent adhesive tape, adhesive tape for household purposes, pressure sensitive tape for home use, paper filters for coffee makers, paper for use in the manufacture of tea bags, paper napkins, tissue paper; toilet paper, paper towels, paper bags and plastic bags for packing, paper and plastic freezer paper, paper and plastic food wrap, wax paper, trash can liners, paper place mats, paper table cloths, paper baby bibs; disposable diapers, disposable training pants; disposable housebreaking pads for use in training dogs; advertising signs of paper and cardboard, printed paper window signs; artists’ materials, namely, artists’ brushes and artists’ pastels; paint brushes; adhesive tape dispensers, adhesive tape for household and office use; staplers, correcting fluid for type, binder letter clips, paper clips, bookmarks, plastic bubble packs for wrapping or packaging, glue sticks, stationery for household use, note pads, order note pads, self-adhesive note pads, plastic bags for household use, rubber bands, drawing rulers, ungraduated rulers; photographic supplies namely photograph albums, photograph mounts and plastic pages for holding photographs.

26

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 21 - Household or kitchen utensils and containers not of precious metal or coated therewith, namely, graters, sieves, spatulas, strainers, turners, whisks, buckets, dust bins, pots, pans, bowls, dishes, pet feeding dishes, aluminum pans and dishes, felt pads and lambswool pads for cleaning and polishing purposes, dust cloths; shaped ironing board covers; glass cooking and kitchenware, namely, glass cooking pots and pans; combs; sponges for household purposes, sponge mops, sponge mop refills, utility brushes, namely, scrubbing brushes, dustpan brushes, nail brushes; brushes for footwear and pets, hair brushes, clothes brushes, brooms, toothbrushes, electric toothbrushes, electric toothbrushes for pets, dental floss; brush-making materials; steel wool for cleaning; beverage glassware; porcelain and earthenware cookware, namely, bake ware, dinnerware, plates, dishes, bowls, cups, mugs, paper and plastic plates and cups; vases; corkscrews.

27

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
		Class 29 - Meat, fish, poultry and game; meat extracts; preserved, dried and processed fruits, apple sauce, fruit preserves; preserved, dried and cooked vegetables; jellies, jams, compotes; eggs, milk, and milk products, namely, milk, buttermilk, dairy-based food beverages, butter, butter ghee, cream, concentrated butter or edible anhydrous milk fats, milk powder, dehydrated milk, yoghurt, natural yoghurt, drinkable yoghurt, fruit yoghurt, frozen yoghurt, dietetic yoghurt for non-medical purposes, namely, low-fat yoghurt, non-fat yoghurt, low-sugar yoghurt and sugar-free yoghurt, ice cream, cheese, cottage cheese, sour cream, whipped toppings, coffee cream, namely, cream for coffee, and evaporated milk, milk-based beverages with high milk content and flavored with cocoa, chocolate, coffee, or other flavorings, namely, vanilla, fruit juices, fruit flavorings, fruit flavors, mocha, caramel, green tea, mint an d honey, dairy-based meat replacements, milk curd, proteins for human consumption, namely, for use as a food additive or food filler, dairy-based chocolate beverages containing milk, namely, chocolate milk; edible fat mixture from vegetables and butyric fatty materials, coffee whitener consisting of vegetable-based edible fat, non-dairy creamer, imitation cheese, edible oils and fats, pickles; peanut butter.
		Class 30 - Coffee, decaffeinated coffee, coffee substitutes, tea, tea bags, cocoa, sugar, rice, tapioca, sago, flour, pasta, macaroni and cheese, breakfast cereals, cereal-based snack foods, bread, pastry, and confectionery, namely, pastries, pies, cakes, edible decorations for cakes, frozen confections, biscuits, shortcake, waffles, cookies, crackers, spice-cakes, rusks, chocolate, filled chocolate, milk chocolate, chocolate bars, chocolate candies, chocolate covered nuts, truffles, namely, chocolate truffles, candies, sugarless candies, gum drops, candy bars, caramels, toffee, marshmallow, halvah, marzipan, fudge, nougat, liquorices, fruit jellies and bonbons, fruit and marzipan jellies, pastilles, candy mints, crystal sugar pieces, confectionery chips for baking; non-medicated chewing gum, bubble gum; fruit ices; honey, treacle; yeast, baking-powder; salt, mustard, vinegar, sauces, spaghetti sauces, spic es, ice; iced tea.
		Class 31 -Cut and live Christmas trees; unpopped popcorn; unprocessed nuts; absorbent cat litter; fresh fruits and vegetables; seeds, namely, wheat seeds, plant seeds, and rye seeds, bird seeds, grass seed, lawn seed, raw pine bark, mulch, and top soil, flower seeds; living plants and flowers; foodstuffs for animals, birds and fish; pet treats; malt for brewing and distilling.
		Class 32 -Beers; mineral and aerated waters; and other nonalcoholic drinks, namely, energy drinks, sports drinks, bottled artesian water, soda water, seltzer water, nonalcoholic cocktail mixers, ginger ale, root beer; fruit drinks and fruit juices, fruit nectars, apple juice cocktail, cranberry juice cocktail; carbonated and non-carbonated soft drinks; coconut water; vegetable juice, tomato juice, blended fruit and vegetable juice; lemonade and lemon juice; syrups, concentrates, powders and preparations for making fruit drinks; powdered mixes for making non-carbonated soft drinks and isotonic sports drinks, soy-based beverages not being milk substitutes.

28

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
Shopping Cart Design	® 8/20/02	Class 35:  Retail supermarket store services	2,609,325 (76/241,607)	8/20/2012 Use due:  8/20/07 – 8/20/08
SIERRA RANCH	™ 3/31/09	Class 29:  Fresh meats.	(77/703,362)		ITU OWN BRANDS
	® 7/15/08	Class 35:  Supermarkets; Retail Grocery Store Services featuring a wide variety of consumer goods of others.	3,467,757 (77/378,422)		Filed:  1/23/08 (77/378,422) Publ:  4/29/08
SMOOTH	® 1/27/98	Class 35:  retail store services featuring alcoholic beverages and accessories used in the storage and consumption of alcoholic beverages.	2,133,522 (75/182,645)	1/27/2018	Best Cellars Filed:  10/11/96 S.N. 75/182,645
SOFT	® 5/04/99	Class 35:  retail store services featuring alcoholic beverages and accessories used in the storage and consumption of alcoholic beverages.	2,243,938 (75/182,648)	5/4/2009	Best Cellars Filed:  10/11/96 S.N. 75/182,648
SOFT	® 12/20/05	Class 35:  retail store services featuring alcoholic beverages and accessories used in the storage and consumption of alcoholic beverages.	3,032,256 (78/538,856)	12/20/2015	Best Cellars Filed:  12/28/04 S.N. 78/538,856
SPLISH SPLASH	® 2/28/06	Class 32:  Fruit Juice Drinks	3,062,628 (78/481,891)	2/28/2016	Filed:  9/10/04
Sun Icon (Design only)	® 7/06/99	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,258,387 (75/182,600)	7/6/2009	Best Cellars Filed:  10/11/96 S.N. 75/182,600

29

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
SUPER FRESH	® 8/05/97	Class 42:  Retail Grocery Store Services	2,085,126 (73/732,662)	8/5/2007
(Stylized)	® 2/11/03	Class 35:  Retail Grocery Store and Delicatessen Services Class 42:  Catering Services and Delicatessen Restaurants	2,685,875 (76/346,252)	2/11/2013	Service Mark
THE FOOD EMPORIUM	® 7/29/03	Class 35:  Retail Grocery Store and Delicatessen Services Class 42:  Catering and Take-out Delicatessen Services	2,741,163 (76/360,323)	7/29/2013	Service Mark
THE GREAT ATLANTIC & PACIFIC TEA COMPANY	® 5/27/08	Class 35:  Supermarket Services	3,435,064 (77/282,376)	5/27/2018 Use Due:  5/27/2013 thru 5/27/2014	Service Mark Filed:  9/18/07 First Use:  1870
THE VERY BEST. . . JUST FOR YOU	® 9/09/03	Class 35:  Retail Grocery Store Services Class 42:  Catering and Take-out Delicatessen Services	2,761,287 (76/439,689)	9/9/2013	Service Mark
TORNADO SPLASH	® 7/11/06	Class 32:  Fruit juices	3,115,079 (78/435,495)	7/11/2016	ITU Filed:  6/15/04
ULTRA XTREME	® 8/22/06	Class 3:  Laundry Detergent	3,132,890 (78/715,736)		Filed:  9/19/05
VIA ROMA	™ 3/31/08	Class 29:  Oil, namely edible oils, cooking oil, dipping oil and olive oil for food; processed olives; olive spread; dipping spice; bruschetta toppings; tapenades; appetizers, namely, artichoke stuffed with feta, sun dried tomato stuffed with feta, sweet pepper stuffed with feta, grape leaves, stuffed grape leaves, sun dried tomato with olive oil, antipasto, giardeniera; roasted peppers in water; sliced cherry peppers in oil; fire roasted sweet red pepper fire roasted yellow pepper, hot peppers, roasted red hot peppers, hot peppers, pepperoncini, grilled vegetables.	(77/435,941)	Use:  July 20, 2009	ITU — OWN BRANDS Filed:  3/31/08 Publ.  7/22/08 Allowance:  1/20/09 Opposition:  Coffee Holdings’
		Class 30:  pasta, pasta sauce, fish sauces; meat sauces; capers; pesto sauce; glazes for meat and fish; mustards; chutney; vinegar and dipping spice.

30

MARK	STATUS / DATE	GOODS & SERVICES	REGIS. #  / Appl. # /	EXP. DATE / USE DUE / RENEWAL DUE	COMMENTS
WALDBAUM’S	® 7/22/08	Class 35:  Retail Grocery Store Services	3,471,095 (77/323,811)	7/22/18 (Use Due:  7/22/13 – 7/22/14)	Service Mark Acquired in conjunction with the acquisition of Waldbaum’s in 1904 Filed:  11-07-07
WE’RE THINKING FRESH	® 7/04/06	Class 35:  Retail Store Services and Supermarket Services	3,111,361 (78/533,406)	7/4/2016	Service Mark Filed:  12/16/04
WORTH A SPLURGE	® 12/17/02	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,663,165 (76/392,259)	12/17/2012 (Use due:  12/17/07 – 12/17/08) Grace Period:  6/17/09	Service Mark S.N. 76/392,259 Filed:  4/08/02 Registrant:  Grape Finds of Dupont, Inc. (No Assignment to Best Cellars, Inc.)
YOU KNOW WHAT YOU LIKE. WE KNOW WINE.	® 3/23/04	Class 35:  Retail Store Services featuring Alcoholic Beverages and Accessories used in the Storage and Consumption of Alcoholic Beverages	2,824,476 76/423,835)	3/23/2014	Best Cellars Filed:  6/21/02

31

Schedule V - Claims

1.The Borough of Somerville v. Pathmark Stores, Inc., JSM at Somerville, LLC et al., Docket No.: SOM-L-250-07, Superior Court of New Jersey, Somerset County (Law Division)and Pathmark Stores, Inc., v. JSM at Sommerville,  LLC, Docket No.SOM-C-12034-05, Superior Court of New Jersey, Somerset County (Chancery Div.) Pathmark is prosecuting a claim for lost real estate (i.e., leasehold)value in connection with the forced surrender of an operating store lease in connection with a condemnation action c ommenced by the Borough of Somerville, in accordance with a plan for re-development of a shopping center location on the Somerville Circle. It is estimated that the Company’s damages range from $1.5- 2.0 million. Discovery has been completed in this matter and it is awaiting a trial date.

2.CPS Operating Company, LLC v. Pathmark Stores, Inc., Index No.07-604262, New York Supreme Court, New York County Pathmark and CPS entered into a development agreement for the planned construction of two mid-rise residential towers above the existing Pathmark store location on Cherry Street in Manhattan. In December of 2007,CPS terminated the development agreement. The parties are now each seeking the release of a $6.0 million escrow deposit. Summary judgment motions filed by both parties were denied by the trial court; Pathmark has appealed the denial of its summary judgment motion. The appeal has been briefed and is awaiting argument.

3.In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, United States District Court (E.Dist. of New York)MD 05-1720(JG)(JO) [RelatedCivilActionNos.CV-05-3925, CV-05-4650, CV-05-4677, CV-05-4799, CV-06-0039, CV-06-0078) A&P is a participant with numerous other major retailers in an antitrust action brought against Visa, MasterCard and American Express alleging excessive transaction fees charged in connection with customer use of charge and

debit cards at store locations. This is a massive litigation matter that is in the throes of discovery. Resolution of this case is not expected within the next18 months.

Schedule VI-Instruments and Chattel Paper

None.

Schedule VII — Securities Accounts and Commodity Accounts

Bank	Account	A/C Name	Type
Double Rock Corp
(The Reserve)
1250 Broadway	69953511	A&P	Investment
32nd Floor
New York, NY 10001
Oppenheimer& Co.
200 Park Ave. 24th Fl. New York, NY 10166	G24-1611446-G7B	The Great Atlantic & Pacific Tea Co., Inc.	Investments

Schedule VIII — Electronic Chattel Paper and Transferable Records

None.

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).

References made to the 11 3/8 % 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 $260,000,000issued pursuant to the Indenture, dated as of August4, 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 ha s, 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 August4,2009 (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. ]

Section4.17  of the Security Agreement requires that upon formation or acquisition of any new director 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:

Section1. 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

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 th e 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).

A-2

Section6.               Governing Law. THIS AGREEMENTAND THE RIGHTSAND OBLIGATIONSOF THE PARTIESHEREUNDERSHALLBE GOVERNEDBY AND CONSTRUED AND INTERPRETEDIN ACCORDANCEWITH THE LAWSOF THE STATEOF NEW YORK (INCLUDING, WITHOUTLIMITATION,SECTION5-1401OF THE GENERALOBLIGATIONS LAW OF THE STATE OF NEW YORK).

Section7.               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 requestor deliver the same shall not limit the effectiveness of any facsimile document or signature.

[Signature Pages Follow]

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 Agr-eement

EXHIBIT B

Perfection Certificate

Exhibit B to Accession Agreement

Schedule I to the Security Agreement

Schedule II to the Security Agreement

Schedule III to the Security Agreement

Schedule IV to the Security Agreement

Schedule V to the Security Agreement

Schedule VI to the Security Agreement

Schedule VII to the Security Agreement

Schedule VIII to the Security Agreement

EXHIBIT B to Security Agreement

PERFECTION CERTIFICATE

Reference is made to (i) the Security Agreement, dated as of August4, 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 August4, 2009 (as amended, supplemented or otherwise modified from time to time, the “Pledge Agreement”), am ong 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 I(a).

(b)Set forth on Schedule I(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 l(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 I(c) the information required by Sections I and 2 of this certificate as to each acquiree or constituent party to a merger or consolidation.

(d)Set forth in Schedule l(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 l(d).

2.Current Locations.

(a)The chief executive office of each Grantor is located at the address set forth in Schedule2(a) attached hereto.

(b)Set forth in Schedule2(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 Schedule2(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 I, 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 led) 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-I 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 led) 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 eac h 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.

[Signature Pages Follow]

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.

IN WITNESS WHEREOF, the undersigned has duly executed this certificate on this                          day of August, 2009.

THE GREATATLANTIC & PACIFIC TEA COMPANY, INC.
By:
	Name:
	Title:

EACH OF THE GRANTORSLISTEDON 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:

[Signature Pages Follow]

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 August4, 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 capa city, 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 successor or assigns), hereby agree as follows:

SECTION1.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.

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“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 HEREAFTERACQUIREDOR ARISING, TOGETHER WITH ALL PRODUCTS, PROCEEDS, SUBSTITUTIONS, AND ACCESSIONS THEREOF, INCLUDING ANY CLAIM BY GRANTORS AGAINST THIRD PARTIES FOR PAST, PRESENT, OR FUTURE INFRINGEMENT, DILU TION, 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 pr ovisions 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.

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SECTION 6. Termination; Release of lntellectual 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]

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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 GREATATLANTIC& PACIFICTEA COMPANY, INC.
	By:
		Name:
		Title:

THE ENTITIESLISTEDON SCHEDULEI HERETO,
as Guarantors

  By:

Name:

Title:

Signature Page to Grant of Security Interest in United States Patents and Trademarks

COLLATERALAGENT:
	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.

WITNESSETH:

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

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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, I N 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

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termination statements, releases or other documents pursuant to this SECTION6 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHERE OF, 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 GREATATLANTIC& PACIFICTEA
	COMPANY, INC.
	By:
	Name:
	Title:
	THE ENTITIESLISTEDON SCHEDULEI HERETO, as Guarantors
	By:
	Name:
	Title:

Signature Page to Grant of Security Interest in United States Copyrights

COLLATERAL AGENT:	WILMINGTONTRUST COMPANY, as
	Collateral Agent
	By:
		Name:
		Title:

SignaturePageto Grantof SecurityInterestin UnitedStatesCopyrights

EXHIBITA

Copyrights

Exhibit A to Grant of Security Interest in UnitedStatesCopyrights

Schedule I

(Guarantors)

Schedule Ito Grant of Security Interest in United States Copyrights