TRUST AGREEMENT
OF
A&P FINANCE II
THIS TRUST AGREEMENT OF A&P FINANCE II is made as of June 9, 1999 (this
"Trust Agreement"), by and among The Great Atlantic & Pacific Tea Company, Inc.,
a Maryland corporation, as sponsor (the "Sponsor"), and Bankers Trust Company, a
New York banking corporation, Bankers Trust (Delaware), a Delaware banking
corporation, Fred Corrado, an individual, and Robert G. Ulrich, an individual,
as trustees (collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "A&P Finance II" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss. 3801, et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the preferred trust
securities and common securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its sole
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the preferred trust securities of the Trust, (b) any preliminary prospectus
or prospectus or supplement thereto relating to the preferred trust securities
of the Trust required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the preferred
trust securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by the Sponsor, to file with the
New York Stock Exchange or other exchange, or the National Association of
Securities Dealers ("NASD"), and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the preferred
trust securities of the Trust to be listed on the New York Stock Exchange or
such other exchange, or the NASD's Nasdaq National Market; (iii) to file and
execute on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents that shall be necessary or desirable to register the
preferred trust securities of the Trust under the securities or "blue sky" laws
of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary
or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the preferred trust
securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the preferred trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "blue sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Sponsor.
7. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the rea-
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sonable fees and expenses of counsel), taxes and penalties of any kind and
nature whatsoever (collectively, "Expenses"), to the extent that such Expenses
arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Trust Agreement, the
creation, operation or termination of the Trust or the transactions contemplated
hereby; provided, however, that the Sponsor shall not be required to indemnify
any Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred trust securities of the Trust at the election of the Sponsor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., as Sponsor
By: /s/ Robert G. Ulrich
------------------------------------
Name: Robert G. Ulrich
Title: Senior Vice President and
General Counsel
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
-----------------------------------
Name: Jacqueline Bartnick
Title: Vice President
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
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FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
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