DELIVERY, AND EACH LENDER SHALL BE SOLELY RESPONSIBLE FOR REQUESTING DELIVERY TO
IT OR MAINTAINING ITS COPIES OF SUCH DOCUMENTS.
129
9.7
SALE OF ASSETS, CONSOLIDATION, MERGER, DISSOLUTION, ETC.
EACH
BORROWER AND GUARANTOR SHALL NOT, AND SHALL NOT PERMIT ANY SUBSIDIARY TO,
DIRECTLY OR INDIRECTLY,
(A)
MERGE INTO OR WITH OR CONSOLIDATE WITH ANY OTHER PERSON OR PERMIT ANY
OTHER PERSON TO MERGE INTO OR WITH OR CONSOLIDATE WITH IT EXCEPT
THAT
NASH-FINCH AND SSD MAY MERGE PURSUANT TO THE NASH-FINCH MERGER AS OF THE
EFFECTIVE DATE AND AFTER THE EFFECTIVE DATE, ANY BORROWER MAY MERGE WITH AND
INTO OR CONSOLIDATE WITH ANY OTHER BORROWER AND ANY GUARANTOR MAY MERGE WITH AND
INTO OR CONSOLIDATE WITH ANY BORROWER, PROVIDED, THAT, EACH OF THE FOLLOWING
CONDITIONS IS SATISFIED AS DETERMINED BY ADMINISTRATIVE AGENT IN GOOD FAITH:
(I) ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOT LESS THAN TEN (10) BUSINESS
DAYS' PRIOR WRITTEN NOTICE OF THE INTENTION OF SUCH SUBSIDIARIES TO SO MERGE OR
CONSOLIDATE, WHICH NOTICE SHALL SET FORTH IN REASONABLE DETAIL SATISFACTORY TO
ADMINISTRATIVE AGENT, THE PERSONS THAT ARE MERGING OR CONSOLIDATING, WHICH
PERSON WILL BE THE SURVIVING ENTITY, THE LOCATIONS OF THE ASSETS OF THE PERSONS
THAT ARE MERGING OR CONSOLIDATING, AND THE MATERIAL AGREEMENTS AND DOCUMENTS
RELATING TO SUCH MERGER OR CONSOLIDATION, (II) ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED SUCH OTHER INFORMATION WITH RESPECT TO SUCH MERGER OR CONSOLIDATION AS
ADMINISTRATIVE AGENT MAY REASONABLY REQUEST, (III) AS OF THE EFFECTIVE DATE OF
THE MERGER OR CONSOLIDATION AND AFTER GIVING EFFECT THERETO, NO DEFAULT OR EVENT
OF DEFAULT SHALL EXIST OR HAVE OCCURRED, (IV) ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED, TRUE, CORRECT AND COMPLETE COPIES OF ALL AGREEMENTS, DOCUMENTS AND
INSTRUMENTS RELATING TO SUCH MERGER OR CONSOLIDATION, INCLUDING, BUT NOT LIMITED
TO, THE CERTIFICATE OR CERTIFICATES OF MERGER TO BE FILED WITH EACH APPROPRIATE
SECRETARY OF STATE (WITH A COPY AS FILED PROMPTLY AFTER SUCH FILING), (V) THE
SURVIVING CORPORATION SHALL EXPRESSLY CONFIRM, RATIFY AND ASSUME THE OBLIGATIONS
AND THE FINANCING AGREEMENTS TO WHICH IT IS A PARTY IN WRITING, IN FORM AND
SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT, AND BORROWERS AND GUARANTORS
SHALL EXECUTE AND DELIVER SUCH OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS AS
ADMINISTRATIVE AGENT MAY REQUEST IN CONNECTION THEREWITH AND (V) TO THE EXTENT A
GUARANTOR IS MERGING WITH AND INTO OR CONSOLIDATING WITH A BORROWER, THE
BORROWER SHALL BE THE SURVIVING CORPORATION;
(B)
SELL, ISSUE, ASSIGN, LEASE, LICENSE, TRANSFER, ABANDON OR OTHERWISE
DISPOSE OF ANY CAPITAL STOCK, OR INDEBTEDNESS OWED TO IT, TO ANY OTHER PERSON OR
ANY OF ITS ASSETS TO ANY OTHER PERSON, EXCEPT
FOR
(I)
SALES OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS,
(II)
THE SALE OR OTHER DISPOSITION OF EQUIPMENT (INCLUDING WORN-OUT OR
OBSOLETE EQUIPMENT OR EQUIPMENT NO LONGER USED OR USEFUL IN THE BUSINESS OF ANY
BORROWER OR GUARANTOR) SO LONG AS (A) SUCH SALES OR OTHER DISPOSITIONS DO NOT
INVOLVE EQUIPMENT HAVING AN AGGREGATE FAIR MARKET VALUE IN EXCESS OF $10,000,000
FOR ALL SUCH EQUIPMENT DISPOSED OF IN ANY FISCAL YEAR OF