WASSERMAN, JURISTA & STOLZ, P.C. 225 Millburn Avenue, Suite 207 P.O. Box 1029 Millburn, New Jersey 07041 Phone: (973) 467-2700 Fax: (973) 467-8126 Attorneys for Mandelbaum & Krupnick LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ___________________________________ : In re: : Chapter 11 : THE GREAT ATLANTIC & PACIFIC : Case No.: 10-24549 (RDD) TEA COMPANY, INC., et al., : : Jointly Administered Debtors. : ___________________________________ :

NOTICE OF REQUEST FOR PAYMENT OF ADMINISTRATIVE CLAIM

PLEASE TAKE NOTICE that upon the annexed motion, dated September 22, 2011 of

Mandelbaum & Krupnick, LLC, by its attorneys, Wasserman, Jurista & Stolz P.C., the undersigned

will move for a hearing before the Hon. Robert D. Drain, United States Bankruptcy Judge, United

States Bankruptcy Court, 300 Quarropas St., White Plains, NY 10601, on November 14, 2011 at

10:00 AM, or as soon thereafter as counsel can be heard for the entry of an order allowing payment

of administrative expenses.

PLEASE TAKE FURTHER NOTICE that objections, if any, to the motion shall conform to

the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules for the Southern

District of New York, shall set forth the grounds with specificity, and shall be filed with this Court

electronically in accordance with Superseding Order M-399, and served in accordance with, and

upon the party specified in, the Order Establishing Certain Notice, Case Management and

Administrative Procedures dated December 14, 2010, including, among other parties, attorneys for

Mandelbaum & Krupnick, LLC, Wasserman, Jurista & Stolz P.C., 225 Millburn Ave., Suite 207,

Millburn, NJ 07041, Attn: Steven Z. Jurista, Esq., so as to be received no later than 4:00 PM (ET)

on October __, 2011.

PLEASE TAKE FURTHER NOTICE that the relief requested in the motion may be granted

without a hearing in the event that the objection is filed with the court in accordance with the notice

procedures order.

WASSERMAN, JURISTA & STOLZ, P.C. Attorneys for Mandelbaum & Krupnick LLC /s/ STEVEN Z. JURISTA ___________________________________ Dated: October 10, 2011 STEVEN Z. JURISTA

WASSERMAN, JURISTA & STOLZ, P.C. 225 Millburn Avenue, Suite 207 P.O. Box 1029 Millburn, New Jersey 07041 Phone: (973) 467-2700 Fax: (973) 467-8126 Attorneys for Mandelbaum & Krupnick LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ___________________________________ : In re: : Chapter 11 : THE GREAT ATLANTIC & PACIFIC : Case No.: 10-24549 (RDD) TEA COMPANY, INC., et al., : : Jointly Administered Debtors. : ___________________________________ :

APPICATION IN SUPPORT OF REQUEST FOR PAYMENT OF ADMINISTRATIVE CLAIM

TO: HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE MANDELBAUM & KRUPNICK LLC (“Landlord”) by and through its attorney

Wasserman, Jurista & Stolz P.C., respectfully moves before this Court for an Order directing

payment of administrative rent by THE GREAT ATLANTIC & PACIFIC TEA COMPANY,

INC. (the “Debtor”) pursuant to 11 U.S.C. § 365(d)(3) and in support thereof respectfully sets

forth as follows:

BACKGROUND

1. The Debtor was the Tenant under a lease dated May 19, 1977 (the “Lease”) with

the Landlord, under which the Debtor occupies a portion of the shopping center (the “Premises”)

located at 598 Central Ave, New Providence, County of Union, State of New Jersey. Pursuant to

the terms of the Lease (annexed hereto as Exhibit A), Debtor is obligated to pay a fixed annual

rent, as well as its portion of the customary common area maintenance (“CAM”).

2. Pursuant to ordinary course between the parties, the Landlord would bill the

Debtor for the entire CAM amount after the year-end. As such, the CAM charge would become

due and payable after the year-end.

3. Subsequent to the Debtor’s filing date, as was required by the Lease, the

Landlord performed the CAM reconciliation and billed the Debtor in 2011 for the CAM owed

for 2010. Notwithstanding the requirements of the Lease, the Debtor has neglected to pay the

total amount due for CAM for 2010 or for 2011. Therefore, as of the date hereof, the Debtor is in

arrears under the Lease for obligations arising post-petition in the amount of $91,834.56. A

summary compilation of the amount due is annexed hereto and made a part hereof as Exhibit B.

4. On June 10, 2011, the Landlord’s counsel communicated by e-mail with counsel

for the Debtor requesting that the Debtor comply with the provisions of the Bankruptcy Code

and bring its post-petition arrears current. Despite the request, and a number of subsequent

communications via email with Debtor’s counsel, a portion of the post-petition arrears still

remain unpaid.

RELIEF REQUESTED

5. At the time of the CAM reconciliation, the Landlord’s lease had neither been

rejected, nor expired under its own terms. That, in and of itself, does not affect the Debtor’s

obligation to cure the post-petition arrears. Understanding this obligation, the Debtor paid a

portion of same.

6. Section 365(d)(3) of the Bankruptcy Code clearly mandates that the Debtor is

obligated to make all post-petition payments that are due under the Lease and to make those

payments in a timely manner. “The trustee shall timely perform all the obligations of the debtor,

except those specified in section 365(b)(2), arising from and after the order for relief under any

unexpired lease of nonresidential real property, until such lease is assumed or rejected,

notwithstanding section 503(b)(1) of this title.” 11 U.S.C. § 365(d)(3).

7. After the Filing Date and before the lease was rejected, as was the ordinary course

between the parties, the Landlord billed the Debtor for the 2010 CAM charges.

8. The law is clear that the Debtor’s obligation is to perform under the lease for all

periods of time from the Filing Date until such time as the lease is rejected. That includes paying

the CAM reconciliation for 2010 that was billed in 2011 pursuant to the terms of the Lease, and

the ordinary course of the parties. See Urban Retail Properties v. Loews Cineplex Entertainment

Corporation, 2002 WL 535479 (S.D.N.Y. 2002); BH S&B Holdings, LLC, 426 B.R. 478

(Bkrptcy S.D.N.Y., 2010).

9. By failing to pay the rent and additional rent as due under the Lease during the

administrative period, the Debtor has failed to comply with its obligations under § 365(d)(3) of

the Bankruptcy Code and should be compelled to do so.

WHEREFORE, it is respectfully requested that the Court enter an order as requested by

the Landlord pursuant to 11 U.S.C. § 365(d)(3) directing the Debtor’s payment of post-petition

administrative rent in the amount of $91,834.56 to Landlord.

Respectfully submitted, WASSERMAN, JURISTA & STOLZ, P.C. Attorneys for Mandelbaum & Krupnick LLC /s/ STEVEN Z. JURISTA ___________________________________ Dated: October 10, 2011 STEVEN Z. JURISTA

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ___________________________________ : In re: : Chapter 11 : THE GREAT ATLANTIC & PACIFIC : Case No.: 10-24549 (RDD) TEA COMPANY, INC., et al., : : Jointly Administered Debtors. : ___________________________________ :

ORDER APPROVING MOTION OF MANDELBAUM & KRUPNICK, LLC FOR PAYMENT OF ADMINISTRATIVE CLAIM

Upon the motion of Mandelbaum & Krupnick, LLC for the allowance and payment of an

administrative expense claim (the "Motion"); and the Court finding that adequate notice thereof has

been provided pursuant to the Federal Rules of Bankruptcy Procedure and the Local Rules of this

Court; and it appearing that no other or further notice need be provided; and after due deliberation

thereon and sufficient cause appearing therefor; it is hereby

ORDERED that Mandelbaum & Krupnick, LLC shall have an allowed administrative

expense priority claim pursuant to 11 U.S.C. § 503(b)(9) in the amount of $91,834.56 (the

“Allowed Claim"); and it is further

ORDERED that the above-captioned debtors and debtors in possession are hereby directed

to immediately pay the Allowed Claim to Mandelbaum & Krupnick, LLC; and it is further

ORDERED that this Court shall retain jurisdiction with respect to all matters relating to the

interpretation or implementation of this order.

Dated: November ____, 2011 _____________________________________ The Honorable Robert D. Drain United States Bankruptcy Judge