ANY OF ITS SUBSIDIARIES ARE AFFECTED BY ANY FIRE,
EXPLOSION, ACCIDENT, STRIKE, LOCKOUT OR OTHER LABOR DISPUTE, DROUGHT, STORM,
HAIL, EARTHQUAKE, EMBARGO, ACT OF GOD OR OF THE PUBLIC ENEMY OR OTHER CASUALTY
(WHETHER OR NOT COVERED BY INSURANCE) THAT, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
8.28
NASH-FINCH MERGER.
(A)
BORROWERS HAVE DELIVERED TO ADMINISTRATIVE AGENT COMPLETE AND CORRECT
COPIES OF THE NASH-FINCH MERGER DOCUMENTS IN EFFECT AS OF THE EFFECTIVE DATE,
INCLUDING ALL SCHEDULES AND EXHIBITS THERETO.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF EACH OF THE NASH-FINCH MERGER DOCUMENTS HAS BEEN DULY AUTHORIZED
BY ALL NECESSARY ACTION ON THE PART OF BORROWERS.
EACH NASH-FINCH MERGER
DOCUMENT IS THE LEGAL, VALID AND BINDING OBLIGATION OF EACH BORROWER, AS
APPLICABLE, ENFORCEABLE AGAINST EACH BORROWER IN ACCORDANCE WITH ITS TERMS, IN
EACH CASE, EXCEPT (I) AS MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS RELATING TO OR AFFECTING
GENERALLY THE ENFORCEMENT OF CREDITORS' RIGHTS AND (II) THE AVAILABILITY OF THE
REMEDY OF SPECIFIC PERFORMANCE OR INJUNCTIVE OR OTHER EQUITABLE RELIEF IS
SUBJECT TO THE DISCRETION OF THE COURT BEFORE WHICH ANY PROCEEDING THEREFOR MAY
BE BROUGHT.
(B)
AS OF THE EFFECTIVE DATE, THE NASH-FINCH MERGER HAS BEEN CONSUMMATED IN
ACCORDANCE WITH ALL APPLICABLE LAWS.
AS OF THE EFFECTIVE DATE, ALL REQUISITE
APPROVALS BY GOVERNMENTAL AUTHORITIES HAVING JURISDICTION OVER ANY BORROWER OR
GUARANTOR WITH RESPECT TO THE NASH-FINCH MERGER, HAVE BEEN OBTAINED (INCLUDING
FILINGS OR APPROVALS REQUIRED UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS
ACT), TO THE EXTENT THE FAILURE TO OBTAIN SUCH APPROVALS COULD REASONABLY BE
EXPECTED TO BE ADVERSE TO THE INTERESTS OF THE LENDERS IN ANY MATERIAL RESPECT.
AS OF THE EFFECTIVE DATE, AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED
BY THE NASH-FINCH MERGER DOCUMENTS, SSD IS THE OWNER OF ALL OF THE CAPITAL STOCK
OF NASH-FINCH FREE AND CLEAR OF ALL LIENS AND SECURITY INTERESTS, OTHER THAN
LIENS PERMITTED UNDER SECTION 9.8 HEREIN.
8.29
DESIGNATION OF SENIOR INDEBTEDNESS.
ALL OBLIGATIONS ARE
DESIGNATED AS "SENIOR INDEBTEDNESS" UNDER, AND DEFINED IN, THE SENIOR NOTE
INDENTURE, AND ALL SUPPLEMENTAL INDENTURES THERETO.
8.30
SENIOR NOTE INDENTURE.
THE AGGREGATE AMOUNT OF THE LOANS
(INCLUDING SWING LINE LOANS) AND THE LETTER OF CREDIT ACCOMMODATIONS OUTSTANDING
AT ANY TIME DO NOT EXCEED THE AMOUNT THAT WOULD GIVE RISE TO A DEFAULT OR EVENT
OF DEFAULT UNDER THE SENIOR NOTE INDENTURE OR WHICH WOULD GIVE RISE TO THE
OBLIGATION OF PARENT OR ANY OF ITS SUBSIDIARIES TO GRANT A LIEN ON ANY ASSETS TO
SECURE THE SENIOR NOTES.
122
8.31
OFAC.
NEITHER ANY BORROWER, ANY GUARANTOR NOR ANY OF THEIR
SUBSIDIARIES IS IN VIOLATION OF ANY OF THE COUNTRY OR LIST BASED ECONOMIC AND
TRADE SANCTIONS ADMINISTERED AND ENFORCED BY OFAC.
NEITHER ANY BORROWER, ANY
GUARANTOR NOR ANY OF THEIR SUBSIDIARIES (A) IS A SANCTIONED PERSON OR A
SANCTIONED ENTITY, (B) HAS ITS ASSETS LOCATED IN SANCTIONED ENTITIES, OR (C)
DERIVES REVENUES FROM INVESTMENTS IN, OR TRANSACTIONS WITH SANCTIONED PERSONS OR
SANCTIONED ENTITIES.