HEREUNDER, WITHOUT RECOURSE TO OR WARRANTY BY, OR EXPENSE
TO, SUCH LENDER FOR A PURCHASE PRICE EQUAL TO THE OUTSTANDING PRINCIPAL AMOUNT
OF THE LOANS OWING TO SUCH LENDER PLUS ANY ACCRUED BUT UNPAID INTEREST ON SUCH
LOANS AND ACCRUED BUT UNPAID FEES AND OTHER AMOUNTS IN RESPECT OF SUCH LENDER'S
COMMITMENT AND SHARE OF THE LOANS (OTHER THAN ANY EARLY TERMINATION FEE).
UPON
SUCH PURCHASE SUCH LENDER SHALL NO LONGER BE A PARTY HERETO OR HAVE ANY RIGHTS
OR BENEFITS HEREUNDER (EXCEPT FOR RIGHTS OR BENEFITS THAT SUCH LENDER WOULD
RETAIN HEREUNDER AND UNDER THE OTHER FINANCING AGREEMENTS UPON PAYMENT IN FULL
OF ALL OF THE OBLIGATIONS OTHER THAN AS TO ANY EARLY TERMINATION FEE) AND THE
REPLACEMENT LENDER SHALL SUCCEED TO THE RIGHTS AND BENEFITS, AND SHALL ASSUME
THE OBLIGATIONS, OF SUCH LENDER HEREUNDER AND THEREUNDER. IN NO EVENT MAY LEAD
BORROWER REPLACE A LENDER THAT IS ALSO ADMINISTRATIVE AGENT OR AN ISSUER OF A
LETTER OF CREDIT ACCOMMODATION.
(H)
FOR PURPOSES OF THIS SECTION 3.3 AND ANY OTHER APPLICABLE PROVISION OF
THIS AGREEMENT, THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION, THE
BASEL COMMITTEE ON BANKING SUPERVISION (OR ANY SUCCESSOR OR SIMILAR AUTHORITY),
THE BANK FOR INTERNATIONAL SETTLEMENTS AND ALL RULES, REGULATIONS, ORDERS,
REQUESTS, GUIDELINES OR DIRECTIVES IN CONNECTION THEREWITH ARE DEEMED TO HAVE
BEEN ENACTED AND BECOME EFFECTIVE AFTER THE DATE OF THIS AGREEMENT.
74
SECTION 4.
CONDITIONS PRECEDENT
4.1
CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTER OF CREDIT
ACCOMMODATIONS
.
Each of the following is a condition precedent to Administrative Agent and
Lenders making the initial Loans and providing the initial Letter of Credit
Accommodations hereunder:
(A)
EACH OF THE NASH-FINCH MERGER DOCUMENTS SHALL BE REASONABLY SATISFACTORY
TO THE ARRANGERS IN ALL MATERIAL RESPECTS (AND THE ARRANGERS ACKNOWLEDGE THAT
THE NASH-FINCH MERGER DOCUMENTS PROVIDED TO THEM AS OF JULY 21, 2013 ARE
ACCEPTABLE TO THEM), AND CONTEMPORANEOUSLY WITH THE CLOSING OF THE CREDIT
FACILITY ON THE EFFECTIVE DATE, THE NASH-FINCH MERGER SHALL BE CONSUMMATED IN
ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE TERMS OF THE NASH-FINCH MERGER
DOCUMENTS WITHOUT ANY MATERIAL AMENDMENT OR WAIVER THEREOF WHICH IS MATERIALLY
ADVERSE TO THE LENDERS EXCEPT AS CONSENTED TO BY ARRANGERS (IT BEING UNDERSTOOD
THAT ANY CHANGE TO THE DEFINITIONS OF "NASH-FINCH MATERIAL ADVERSE EFFECT",
"SPARTAN MATERIAL ADVERSE EFFECT", OR "MATERIAL ADVERSE EFFECT" CONTAINED IN THE
NASH-FINCH MERGER AGREEMENT, ANY WAIVER OF THE CONDITIONS PRECEDENT SET FORTH IN
THE NASH-FINCH MERGER AGREEMENT REGARDING THE ABSENCE OF A "NASH-FINCH MATERIAL
ADVERSE EFFECT", "SPARTAN MATERIAL ADVERSE EFFECT", OR "MATERIAL ADVERSE
EFFECT", ANY CHANGE IN THE REPRESENTATIONS IN THE NASH-FINCH MERGER AGREEMENT
RELATING TO A "NASH-FINCH MATERIAL ADVERSE EFFECT", "SPARTAN MATERIAL ADVERSE
EFFECT", OR "MATERIAL ADVERSE EFFECT" OR ANY APPROVAL, WAIVER OR CONSENT TO ANY
ACTIONS TAKEN OR FAILURE TO TAKE ACTION BY PARENT AS PROVIDED FOR IN SECTION
6.11 OF THE NASH-FINCH MERGER AGREEMENT BY PARENT WITHOUT THE CONSENT OF
ARRANGERS, SHALL BE DEEMED TO BE MATERIAL AND ADVERSE TO THE INTERESTS OF THE
LENDERS), AND OTHERWISE IN COMPLIANCE