Exhibit 10.1

Amended and Restated Loan and Security Agreement

by and among

Spartan Stores, Inc. and certain of its Subsidiaries
as Borrowers
and

Any Person that becomes a Guarantor hereunder

Wells Fargo Capital Finance, LLC
as Administrative Agent

The Lenders from Time to Time Party Hereto
as Lenders

Wells Fargo Bank, National Association
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Joint Lead Arrangers and Joint Bookrunners

Bank of America, N.A.
as Syndication Agent

Union Bank, N.A.
BMO Harris Bank, N.A.
U.S. Bank, National Association
as Documentation Agents

Dated: November 19, 2013

(iv)

INDEX TO
EXHIBITS AND SCHEDULES

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

This Amended and Restated Loan and Security Agreement dated, and as amended and restated, as of November 19, 2013 (the “Effective Date”) is entered into by and among Spartan Stores, Inc., a Michigan corporation (“Parent”), Spartan Stores Distribution, LLC, a Michigan limited liability company (“Stores Distribution”), Market Development, LLC, a Michigan limited liability company (“MDC”), Spartan Stores Associates, LLC, a Michigan limited liability company (“Associates”), Family Fare, LLC, a Michigan limited liability company (“Family Fare”), MSFC, LLC, a Michigan limited liability company (“MSFC”), Seaway Food Town, Inc., a Michigan corporation (“Seaway”), The Pharm of Michigan, Inc., a Michigan corporation (“Pharm”), Valley Farm Distributing Co., an Ohio corporation (“Valley Farm”), Gruber’s Real Estate, LLC, a Michigan limited liability company (“Gruber RE”), Prevo’s Family Markets, Inc., a Michigan corporation (“Prevo”), Custer Pharmacy, Inc., a Michigan corporation (“Custer”), Spartan Properties Management, Inc. (formerly known as Buckeye Real Estate Management Co.), an Ohio corporation (“SPM”), Spartan Stores Fuel, LLC, a Michigan limited liability company (“Spartan Fuel”), Nash-Finch Company, a Delaware corporation, as surviving corporation of the merger with SS Delaware, Inc. (“Nash-Finch”), Nash Brothers Trading Company, a Delaware corporation (“Nash Brothers”), T.J. Morris Company, a Georgia corporation (“T.J. Morris”), Super Food Services, Inc., a Delaware corporation (“Super Food”), U Save Foods, Inc., a Nebraska corporation (“U Save”), Hinky Dinky Supermarkets, Inc., a Nebraska corporation (“Hinky Dinky”), GTL Truck Lines, Inc., a Nebraska corporation (“GTL”), Erickson’s Diversified Corporation, a Wisconsin corporation (“Erickson’s”), Grocery Supply Acquisition Corp., a Delaware corporation (“Grocery Supply”, and together with Parent, Stores Distribution, MDC, Associates, Family Fare, MSFC, Seaway, Pharm, Valley Farm, Gruber RE, Prevo, Custer, SPM, Spartan Fuel, Nash-Finch, Nash Brothers, T.J. Morris, Super Food, U Save, Hinky Dinky, GTL and Erickson’s, each individually a “Borrower” and collectively, “Borrowers”), any Person that at any time becomes a party hereto as a guarantor (each individually a “Guarantor” and collectively, “Guarantors”), the parties hereto from time to time as lenders, whether by execution of this Agreement or an Assignment and Acceptance (each individually, a “Lender” and collectively, “Lenders”), Wells Fargo Capital Finance, LLC, a Delaware limited liability company, in its capacity as administrative and collateral agent for Lenders (in such capacity, “Administrative Agent”), Wells Fargo Bank, National Association and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Joint Lead Arrangers and Joint Bookrunners (the “Arrangers”), Bank of America, N.A., as Syndication Agent, Union Bank, N.A., BMO Harris Bank, N.A., and U.S. Bank, National Association, as Documentation Agents.

W I T N E S S E T H: 

WHEREAS, Parent, Stores Distribution, MDC, Associates, Family Fare, MSFC, Seaway, Pharm, Valley Farm, Gruber RE, Prevo, Custer, SPM (the “Existing Spartan Borrowers”), Wells Fargo Capital Finance, LLC, successor by merger to Wachovia Capital Finance Corporation (Central), formerly known as Congress Financial Corporation (Central), in its capacity as administrative and collateral agent for the lenders party thereto (in such capacity, the “Existing Spartan Agent”), and the lenders party thereto (the “Existing Spartan Lenders”) are parties to the Loan and Security Agreement, dated December 23, 2003, as amended by Amendment No. 1 to Loan and Security Agreement, dated as of July 29, 2004, Amendment No. 2 to Loan and Security Agreement, dated as of December 22, 2004, Amendment No. 3 to Loan and Security Agreement, dated as of December 9, 2005, Amendment No. 4 to Loan and Security Agreement, dated as of March 17, 2006, Amendment No. 5 to Loan and Security Agreement, dated as of April 5, 2007, Amendment No. 6 to Loan and Security Agreement, dated as of May 22, 2007, Amendment No. 7 to Loan and Security Agreement, dated as of May 20, 2009, Amendment No. 8 to Loan and Security Agreement, dated as of May 4, 2010, Amendment No. 9 to Loan and Security Agreement, dated September 30, 2010, Amendment No. 10 to Loan and Security Agreement, dated July 19, 2011, Amendment No. 11 to Loan and Security Agreement, dated June 8, 2012 and Amendment No. 12 to Loan and Security Agreement, dated December 4, 2012 (as so amended, the “Existing Spartan Credit Agreement”), pursuant to which the Existing Spartan Lenders (or Existing Spartan Agent on behalf of Existing Spartan Lenders) have made loans (the “Existing Spartan Loans”) and arranged to be issued letters of credit (the “Existing Spartan Letters of Credit”) to or for the account of Existing Spartan Borrowers;

WHEREAS, Nash-Finch, Nash Brothers, T.J. Morris, Super Food, U Save, Hinky Dinky, GTL, Erickson’s, Grocery Supply, HD Falls City, Whitton (the “Existing Nash-Finch Borrowers”), Wells Fargo Capital Finance, LLC, in its capacity as administrative and collateral agent for the lenders party thereto (in such capacity, the “Existing Nash-Finch Agent”), and the lenders party thereto (the “Existing Nash-Finch Lenders”) are parties to the Credit Agreement, dated as of December 21, 2011, as amended by Amendment No. 1 to Credit Agreement, dated as of November 27, 2012 and Amendment No. 2 to Credit Agreement, dated as of April 10, 2013 (as so amended, the “Existing Nash-Finch Credit Agreement” and together with the Existing Spartan Credit Agreement, collectively, the “Existing Credit Agreements”), pursuant to which the Existing Nash-Finch Lenders (or Existing Nash-Finch Agent on behalf of Existing Nash-Finch Lenders) have made loans (the “Existing Nash-Finch Loans”) and arranged to be issued letters of credit (the “Existing Nash-Finch Letters of Credit” and together with the Existing Spartan Letters of Credit, collectively, the “Existing Letters of Credit”) to or for the account of Existing Nash-Finch Borrowers;

WHEREAS, in connection with the Nash-Finch Merger, Parent has formed a wholly-owned Subsidiary, SS Delaware, Inc., a Delaware corporation (“Merger Sub”), and, pursuant to the Nash-Finch Merger Agreement, upon the consummation of the Nash-Finch Merger, Nash-Finch will merge with and into Merger Sub with Nash-Finch as the surviving corporation;

WHEREAS, Borrowers and Guarantors have requested that Administrative Agent and Lenders amend and restate the Existing Credit Agreements and continue to make loans and provide other financial accommodations to Borrowers;

WHEREAS, Administrative Agent and Lenders have agreed to amend and restate the Existing Credit Agreements and each Lender (severally and not jointly) has agreed to make such loans and provide such financial accommodations to Borrowers on a pro  rata  basis according to its Commitment (as defined below), in each case, on the terms and conditions set forth herein; and

WHEREAS, Administrative Agent is willing to act as agent for Lenders on the terms and conditions set forth herein and the other Financing Agreements;

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree that the Existing Credit Agreements shall be (and hereby are) amended and restated as follows:

For purposes of this Agreement, the following terms shall have the respective meanings given to them below:

1.1                 “Account Debtor” shall mean a person obligated on an Account, and including, without limitation, an account debtor as such term is defined in the UCC, Credit Card Issuer, Credit Card Processor, Fiscal Intermediary or other Third Party Payor.

1.2                 “Accounts” shall mean, as to each Borrower and Guarantor, all present and future rights of such Borrower and Guarantor to payment of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel paper or an instrument, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or charge card or information contained on or for use with the card.  The term “Accounts” as used herein shall include, without limitation, Credit Card Receivables, health-care-insurance receivables and any payments arising under or in connection with any coupon clearing arrangement.

1.3                 “Adjusted Eurodollar Rate” shall mean, with respect to each Interest Period for any Eurodollar Rate Loan, the rate per annum determined by dividing (a) the Eurodollar Rate for such Interest Period by (b) a percentage equal to: (i) one (1) minus (ii) the Reserve Percentage.  For purposes hereof, “Reserve Percentage” shall mean the reserve percentage, expressed as a decimal, prescribed by any United States or foreign banking authority for determining the reserve requirement which is or would be applicable to deposits of United States dollars in a non-United States or an international banking office of Reference Bank used to fund a Eurodollar Rate Loan or any Eurodollar Rate Loan made with the proceeds of such deposit, whether or not the Reference Bank actually holds or has made any such deposits or loans.  The Adjusted Eurodollar Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.

1.4                 “Administrative Agent” shall mean Wells Fargo Capital Finance, LLC, in its capacity as administrative agent on behalf of the Lenders and as collateral agent on behalf of the Secured Parties pursuant to the terms hereof and any replacement or successor agent hereunder.

1.5                 “Affiliate” shall mean, with respect to a specified Person, any other Person which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Person, and without limiting the generality of the foregoing, includes (a) any Person which beneficially owns or holds twenty (20%) percent or more of any class of Voting Stock of such Person or other equity interests in such Person, (b) any Person of which such Person beneficially owns or holds twenty (20%) percent or more of any class of Voting Stock or in which such Person beneficially owns or holds twenty (20%) percent or more of the equity interests and (c) any director or executive officer of such Person.  For the purposes of this definition, the term “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by agreement or otherwise.

1.6                 “Administrative Agent Payment Account” shall mean account no. 5000000030266 of Administrative Agent at Wells Fargo Bank, National Association, or such other account of Administrative Agent as Administrative Agent may from time to time designate to Lead Borrower as the Administrative Agent Payment Account for purposes of this Agreement and the other Financing Agreements.

1.7                 “Applicable Margin” means, at any time, as to the interest rate for Base Rate Loans and the interest rate for Eurodollar Rate Loans the applicable percentage (on a per annum basis) set forth below if the Monthly Average Excess Availability for the immediately preceding calendar month is at or within the amounts indicated for such percentage:

provided, that, (a) the Applicable Margin shall be calculated and established once each calendar month based on the Monthly Average Excess Availability for the immediately preceding calendar month and shall remain in effect until adjusted thereafter as of the first day of the next month and (b) notwithstanding the amount of the Monthly Average Excess Availability, for each month prior to the month commencing June 1, 2014, in no event shall the Applicable Margin be less than the percentages set forth in Tier 2 of the schedule above for the applicable category of Loans.  In the event that at any time after the end of a calendar month the Monthly Average Excess Availability for such calendar month used for the determination of the Applicable Margin is determined by Administrative Agent to have been greater or less than the actual amount of the Monthly Average Excess Availability for such calendar month, the Applicable Margin for such prior calendar month shall be adjusted to the applicable percentage based on such actual Monthly Average Excess Availability and, as applicable, any additional interest for the applicable period as a result of such recalculation shall be promptly paid to Administrative Agent, or any excess payment of interest for the applicable period as a result of such recalculation shall be promptly reimbursed to Borrowers by Administrative Agent.

1.8                 “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

1.9                 “Arrangers” shall mean, collectively, Wells Fargo Bank, National Association and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their capacities as Joint Lead Arrangers and Joint Bookrunners; each sometimes being referred to herein individually as an “Arranger”.

1.10             “Assignment and Acceptance” shall mean an Assignment and Acceptance substantially in the form of Exhibit A attached hereto (with blanks appropriately completed) delivered to Administrative Agent in connection with an assignment of a Lender’s interest hereunder in accordance with the provisions of Section 13.7 hereof.

1.11             “Bank of America” shall mean Bank of America, N.A., a national banking association, and its successors and assigns.

1.12             “Bank Product Provider” shall mean any Lender or Affiliate of Lender that provides any Bank Products to Borrowers or Guarantors.

1.13               “Bank Products” shall mean any one or more of the following types or services or facilities provided to a Borrower or a Guarantor by a Bank Product Provider: (a) credit cards, debit cards or stored value cards or the processing of credit card, debit card or stored value card sales or receipts, (b) purchase cards (including so-called “procurement cards” or “P-cards”), (c) cash management or related services, including (i) the automated clearinghouse transfer of funds for the account of a Borrower pursuant to agreement or overdraft for any accounts of Borrowers maintained at Administrative Agent or any Bank Product Provider that are subject to the control of Administrative Agent pursuant to any Deposit Account Control Agreement to which Administrative Agent or such Bank Product Provider is a party, as applicable, (ii) controlled disbursement services, and (iii) card-based accounts payable payment services and (d) Hedge Agreements if and to the extent permitted hereunder. 

1.14             “Base Rate” shall mean the greatest of (a) the Federal Funds Rate plus one-half of one (½%) percent, (b) the Eurodollar Rate (which rate shall be calculated based upon an Interest Period of one (1) month and shall be determined on a daily basis), plus one (1%) percent, and (c) the rate of interest announced, from time to time, within Wells Fargo Bank, National Association at its principal office in San Francisco as its “prime rate”, subject to each increase or decrease in such “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate.

1.15             “Base Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Base Rate in accordance with the terms thereof.  All Swing Line Loans shall be Base Rate Loans.

1.16             “Blocked Accounts” shall have the meaning set forth in Section 6.3 hereof.

1.17             “Borrowing Base Certificate” shall mean a certificate substantially in the form of Exhibit B hereto, as such form may from time to time be modified by Administrative Agent, which is duly completed (including all schedules thereto) and executed by the chief financial officer, vice president of finance, treasurer, corporate treasurer, or controller of Parent and delivered to Administrative Agent.

1.18             “Business Day” shall mean any day other than a Saturday, Sunday, or other day on which commercial banks are authorized or required to close under the laws of the State of New York, and a day on which Administrative Agent is open for the transaction of business, except that if a determination of a Business Day shall relate to any Eurodollar Rate Loans, the term Business Day shall also exclude any day on which banks are closed for dealings in dollar deposits in the London interbank market or other applicable Eurodollar Rate market.

1.19             "Capital Expenditures" shall mean with respect to any Person for any period the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are recorded on the statement of cash flows as purchases of property and equipment.

1.20             “Capital Leases” shall mean, as applied to any Person, any lease of (or any agreement conveying the right to use) any property (whether real, personal or mixed) by such Person as lessee which in accordance with GAAP, is required to be reflected as a liability on the balance sheet of such Person.

1.21             “Capital Stock” shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of such Person’s capital stock or partnership, limited liability company or other equity interests at any time outstanding, and any and all rights, warrants or options exchangeable for or convertible into such capital stock or other interests (but excluding any debt security that is exchangeable for or convertible into such capital stock).

1.22             “Cash Dominion Event” shall mean at any time (a) an Event of Default shall exist or have occurred and be continuing or (b) Excess Availability is less than ten (10%) percent of the Maximum Credit for any two (2) consecutive Business Days or is less than seven and one-half (7.5%) percent of the Maximum Credit on any day; provided, that, (ii) to the extent that the Cash Dominion Event has occurred due to clause (b) of this definition, if Excess Availability shall be equal to or greater than ten (10%) percent of the Maximum Credit for not less than ninety (90) consecutive days, the Cash Dominion Event shall no longer be deemed to exist or be continuing until such time as Excess Availability may again be less than such amount and (iii) a Cash Dominion Event may not be cured as contemplated by clause (i) more than two (2) times in any fiscal year or more than four (4) times during the term of the Credit Facility.

1.23             “Cash Equivalents” shall mean, at any time, (a) any evidence of Indebtedness with a maturity date of ninety (90) days or less issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof; provided, that, the full faith and credit of the United States of America is pledged in support thereof; (b) certificates of deposit or bankers’ acceptances with a maturity of ninety (90) days or less of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $250,000,000; (c) commercial paper (including variable rate demand notes) with a maturity of ninety (90) days or less issued by a corporation (except an Affiliate of any Borrower or Guarantor) organized under the laws of any State of the United States of America or the District of Columbia and rated at least A-1 by Standard & Poor’s Ratings Service, a division of The McGraw-Hill Companies, Inc. or at least P-1 by Moody’s Investors Service, Inc.; (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $250,000,000; (e) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within ninety (90) days or less from the date of acquisition; provided, that, the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985; and (f) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (a) through (e) above.

1.24             “Certificates of Title” shall mean any certificates of title, certificates of ownership or any other registration certificates issued under the laws of any State or Commonwealth of the United States of America or any political subdivision thereof with respect to motor vehicles or other vehicles.

1.25             “Change of Control” shall mean (a) the transfer (in one transaction or a series of transactions) of all or substantially all of the assets of any Borrower or Guarantor to any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act), other than as permitted in Section 9.7 hereof; (b) the liquidation or dissolution of any Borrower or Guarantor or the adoption of a plan by the stockholders of any Borrower or Guarantor relating to the dissolution or liquidation of such Borrower or Guarantor, other than as permitted in Section 9.7 hereof; (c) the acquisition by any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act), of beneficial ownership, directly or indirectly, of more than thirty (30%) percent of the voting power of the total outstanding Voting Stock of Parent; (d) during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Board of Directors of Parent (together with any new directors whose nomination for election or election was approved by a vote of at least a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of Parent then still in office; (e) the failure of Parent to own directly or indirectly one hundred (100%) percent of the voting power of the total outstanding Voting Stock of any other Borrower or Guarantor (except to the extent resulting from mergers, consolidations, liquidations or dissolutions permitted under Section 9.7 hereof); or (f) the occurrence of any “change in control” (or similar term) as defined in the Senior Note Indenture or in the documents governing the Qualified Debt Offering.

1.26             “Code” shall mean the Internal Revenue Code of 1986, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all rules, regulations and interpretations thereunder or related thereto.

1.27             “Collateral” shall have the meaning set forth in Section 5 hereof.

1.28             “Collateral Access Agreement” shall mean an agreement in writing, in form and substance satisfactory to Administrative Agent, by any lessor of premises to any Borrower or Guarantor, or any other person to whom any Collateral is consigned or who has custody, control or possession of any such Collateral or is otherwise the owner or operator of any premises on which any of such Collateral is located, in favor of Administrative Agent with respect to the collateral located at such premises or otherwise in the custody, control or possession of such person.

1.29             “Commitments” shall mean, collectively, the Tranche A Commitment, the Tranche A-1 Commitments and the Tranche A-2 Commitments; sometimes being individually referred to herein as a “Commitment”.

1.30             “Consolidated Net Income” shall mean, with respect to any Person for any period, the aggregate of the net income (loss) of such Person and its Subsidiaries, on a consolidated basis, for such period (and as to Borrowers and Guarantors, excluding to the extent included therein (i) any extraordinary, one-time or non-recurring gains, (ii) extraordinary, one-time or non-recurring non-cash losses or charges, and (iii) operations that have been discontinued on or before the Effective Date), and after deducting the Provision for Taxes for such period, all as determined in accordance with GAAP; provided, that, (a) the net income of any Person that is not a wholly-owned Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid or payable to such Person or a wholly-owned Subsidiary of such Person; (b) except to the extent included pursuant to the foregoing clause, the net income of any Person accrued prior to the date it becomes a wholly-owned Subsidiary of such Person or is merged into or consolidated with such Person or any of its wholly-owned Subsidiaries or that Person’s assets are acquired by such Person or by any of its wholly-owned Subsidiaries shall be excluded; (c) the effect of any change in accounting principles adopted by such Person or its Subsidiaries after the Effective Date shall be excluded; (d) net income shall exclude interest accruing, but not paid on indebtedness owing to a Subsidiary or parent corporation of such Person; and (e) the net income (if positive) of any wholly-owned Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such wholly-owned Subsidiary to such Person or to any other wholly-owned Subsidiary of such Person is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such wholly-owned Subsidiary shall be excluded.  For the purposes of this definition, net income excludes any gain and non-cash loss together with any related Provision for Taxes for such gain and non-cash loss realized upon the sale or other disposition of any assets that are not sold in the ordinary course of business (including, without limitation, dispositions pursuant to sale and leaseback transactions and for this purpose sales or other dispositions of retail store locations or distribution centers shall not be deemed to be in the ordinary course of the business of Borrowers and Guarantors) or of any Capital Stock of such Person or a Subsidiary of such Person and any net income or non-cash loss realized as a result of changes in accounting principles or the application thereof to such Person.

1.31             “Credit Card Acknowledgments” shall mean, collectively, the agreements by Credit Card Issuers or Credit Card Processors who are parties to Credit Card Agreements in favor of Administrative Agent acknowledging Administrative Agent’s first priority security interest, in the monies due and to become due to a Borrower or Guarantor (including, without limitation, credits and reserves) under the Credit Card Agreements, and agreeing to transfer all such amounts to the Blocked Accounts, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced; sometimes being referred to herein individually as a “Credit Card Acknowledgment”.

1.32             “Credit Card Agreements” shall mean all agreements now or hereafter entered into by any Borrower or any Guarantor for the benefit of any Borrower, in each case with any Credit Card Issuer or any Credit Card Processor, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including, but not limited to, the agreements set forth on Schedule 8.16 hereto.

1.33             “Credit Card Issuer” shall mean any person (other than a Borrower or Guarantor) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc. or Discover Financial Services, Inc.

1.34             “Credit Card Processor” shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Borrower’s or Guarantor’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.

1.35             “Credit Card Receivables” shall mean, collectively, (a) all present and future rights of any Borrower or Guarantor to payment from any Credit Card Issuer, Credit Card Processor or other third party arising from sales of goods or rendition of services to customers who have purchased such goods or services using a credit card or debit card and (b) all present and future rights of any Borrower or Guarantor to payment from any Credit Card Issuer, Credit Card Processor or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers who have purchased such goods or services using a credit card or a debit card, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise.

1.36             “Credit Facility” shall mean the Loans and Letter of Credit Accommodations provided to or for the benefit of any Borrower pursuant to Sections 2.1, 2.2, 2.3 and 2.4 hereof.

1.37             “Customer Credit Liabilities” shall mean at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards of Borrowers and Guarantors entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits and customer deposits of Borrowers and Guarantors.

1.38             “Default” shall mean an act, condition or event which with notice or passage of time or both would constitute an Event of Default.

1.39             “Defaulting Lender” shall have the meaning set forth in Section 6.10 hereof.

1.40             “Deposit Account Control Agreement” shall mean an agreement in writing, in form and substance satisfactory to Administrative Agent, by and among Administrative Agent, the Borrower or Guarantor with a deposit account at any bank and the bank at which such deposit account is at any time maintained which provides that such bank will comply with instructions originated by Administrative Agent directing disposition of the funds in the deposit account without further consent by such Borrower or Guarantor and has such other terms and conditions as Administrative Agent may require.

1.41             “Distribution Division” shall mean the operations of Parent, Associates, Stores Distribution, Valley Farm, MDC, Nash-Finch, T.J. Morris, Nash Brothers, Super Food and GTL (together with their respective successors and assigns) consisting of (a) distribution of groceries, produce, dairy products, meat, deli, bakery , frozen food, seafood, floral products, general merchandise, pharmacy and health and beauty care items, including, but not limited to, distribution of private brand grocery and general merchandise to independent grocery and convenience stores as well as grocery stores, pharmacies, convenience stores and fuel centers owned by Borrowers or any of their Subsidiaries and (b) providing various services to independent distribution customers.

1.42             “EBITDA” shall mean, as to any Person, with respect to any period, an amount equal to: (a) the Consolidated Net Income of such Person and its Subsidiaries for such period, plus (b) depreciation and amortization and other non-cash charges including imputed interest, deferred compensation and in the case of Borrowers and Guarantors, non-cash costs associated with the closing of retail store locations or other facilities, in each case for such period (to the extent deducted in the computation of Consolidated Net Income of such Person), all in accordance with GAAP, plus (c) Interest Expense for such period (to the extent deducted in the computation of Consolidated Net Income of such Person), plus (d) the Provision for Taxes for Federal and State taxes for such period (to the extent deducted in the computation of Consolidated Net Income of such Person), plus (e) all charges with respect to the Michigan Corporate Income Tax as levied by the Michigan Department of Treasury or any replacement taxes thereof for such period (to the extent deducted in the computation of Consolidated Net Income for such Person), plus (f) one-time charges for restructurings and “Other unusual items” as reported in a Form 10-K or a Form 10-Q of Parent filed with the Securities and Exchange Commission for such period, plus (g) non-cash charges related to goodwill impairment and impairment of non-cash intangibles, minus (h) one time gains or income.

(f)      such Accounts do not consist of progress billings (such that the obligation of the Account Debtors with respect to such Accounts is conditioned upon such Borrower’s satisfactory completion of any further performance under the agreement giving rise thereto), bill and hold invoices or retainage invoices, except as to bill and hold invoices, if Administrative Agent shall have received an agreement in writing from the Account Debtor, in form and substance satisfactory to Administrative Agent, confirming the unconditional obligation of the Account Debtor to take the goods related thereto and pay such invoice;

(g)     the Account Debtor with respect to such Accounts has not asserted a counterclaim, defense or dispute and is not owed any amounts that may give rise to any right of setoff or recoupment against such Accounts (but the portion of the Accounts of such Account Debtor in excess of the amount at any time and from time to time owed by such Borrower to such Account Debtor or claimed owed by such Account Debtor may be deemed Eligible Accounts),

(h)     there are no facts, events or occurrences which would impair the validity, enforceability or collectability of such Accounts;

(i)       such Accounts are subject to the first priority, valid and perfected security interest of Administrative Agent and any goods giving rise thereto are not, and were not at the time of the sale thereof, subject to any liens except those permitted in this Agreement that are subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent between the holder of such security interest or lien and Administrative Agent;

(j)       neither the Account Debtor nor any officer or employee of the Account Debtor with respect to such Accounts is an officer, employee, agent or other Affiliate of any Borrower or Guarantor, except that up to $10,000,000 of Accounts at any time due from an Account Debtor that is an Affiliate but is not an individual or a Borrower or Guarantor or a Subsidiary of a Borrower or Guarantor which Account arises in the ordinary course of business and on an arms-length basis on the same terms and conditions as for a receivable due from an unaffiliated company and without any special consideration may be Eligible Accounts;

(k)     the Account Debtors with respect to such Accounts are not any foreign  government, the United States of America, any State, political subdivision, department, agency or instrumentality thereof, unless, if the Account Debtor is the United States of America, any State, political subdivision, department, agency or instrumentality thereof, upon Administrative Agent’s request, the Federal Assignment of Claims Act of 1940, as amended or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Administrative Agent or except as to Medicaid Accounts, Medicare Accounts and Accounts arising from WIC, Supplemental Nutrition Assistance Program or other food stamp programs, such Accounts otherwise constitute Eligible Accounts hereunder;

(l)       there are no proceedings or actions which are threatened or pending against the Account Debtors with respect to such Accounts which might result in any material adverse change in any such Account Debtor’s financial condition (including, without limitation, any bankruptcy, dissolution, liquidation, reorganization or similar proceeding);

(m)   the aggregate amount of such Accounts owing by a single Account Debtor do not constitute more than twenty (20%) percent of the aggregate amount of all otherwise Eligible Accounts of Borrowers (but the portion of the Accounts not in excess of the applicable percentages may be deemed Eligible Accounts);

(n)     such Accounts are not owed by an Account Debtor who has Accounts unpaid (i) for Accounts with stated terms of fifteen (15) days or greater, more than sixty (60) days after the original due date thereof or more than ninety (90) days after the original invoice or statement date (as applicable) or (ii) for Accounts with stated terms of less than fifteen (15) days, more than thirty (30) days after the original due date thereof or more than ninety (90) days after the original invoice or statement date (as applicable), in any case which constitute more than fifty (50%) percent of the total Accounts of such Account Debtor (it being understood that the statement date is applicable to Accounts of the Distribution Division);

(o)     the Account Debtor is not located in a state requiring the filing of a Notice of Business Activities Report or similar report in order to permit such Borrower to seek judicial enforcement in such State of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year or such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;

(p)     such Accounts are owed by Account Debtors whose total indebtedness to such Borrower does not exceed the credit limit with respect to such Account Debtors as determined by such Borrower from time to time, to the extent such credit limit as to any Account Debtor is established consistent with the current practices of such Borrower as of the Effective Date and such credit limit is acceptable to Administrative Agent (but the portion of the Accounts not in excess of such credit limit may be deemed Eligible Accounts);

(q)     the collection of such Accounts are not, in Administrative Agent’s good faith discretion, believed to be doubtful, including by reason of the Account Debtors financial condition;

(r)      as to Medicaid Accounts, (i) the claim for reimbursement related to such Account has been submitted to the appropriate Fiscal Intermediary in accordance with the applicable regulations under Medicaid within thirty (30) days from the date the claim arose, (ii)  the person to whom the goods were sold is an eligible Medicaid beneficiary at the time such goods are sold and such eligibility has been verified by the Borrower making such sale, (iii) such Account is owed to a Borrower who is not under any investigation (other than the periodic audits conducted by a Fiscal Intermediary in the ordinary course of business) or subject to any action or proceeding concerning the status of such Borrower as a Certified Medicaid Provider and/or the payments under Medicaid to such Borrower have not been contested, suspended, delayed, deferred or otherwise postponed due to any investigation, action or proceeding by the U.S. Justice Department or any other Governmental Authority, (iv) the amount of such Account does not exceed the amounts to which the Borrower making such sale is entitled to reimbursement for such eligible Medicaid beneficiary under applicable Medicaid regulations (provided, that, to the extent that the amount of any such excess is de minimis, the portion of the Account not in excess of the reimbursable amount may be deemed an Eligible Account), (v) all authorization and billing procedures and documentation required in order for the Borrower making such sale to be reimbursed and paid on such Account by the Fiscal Intermediary have been properly completed and satisfied to the extent required in order for such Borrower to be so reimbursed and paid and (vi) the terms of the sale giving rise to such Accounts and all practices of such Borrower and Guarantors with respect to such Accounts comply in all material respects with applicable Federal, State, and local laws and regulations; provided, that, in no event shall the aggregate amount of Medicaid Accounts, Medicare Accounts and Accounts arising from WIC, Supplemental Nutrition Assistance Program or other food stamp programs that are deemed to be Eligible Accounts (but without limitation as to the amount of such Accounts) exceed $7,500,000 or such higher amount (not to exceed $12,500,000) as Administrative Agent may agree in writing;

(s)      as to Medicare Accounts, (i) the claim for reimbursement related to such Account has been submitted to the appropriate Fiscal Intermediary in accordance with the applicable regulations under Medicare within thirty (30) days from the date the claim arose, (ii)  the person to whom the goods were sold is an eligible Medicare beneficiary at the time such goods are sold and such eligibility has been verified by the Borrower making such sale, (iii) such Account is owed to a Borrower who is not under any investigation (other than the periodic audits conducted by a Fiscal Intermediary in the ordinary course of business) or subject to any action or proceeding concerning the status of such Borrower as a Certified Medicare Provider and/or the payments under Medicare to such Borrower have not been contested, suspended, delayed, deferred or otherwise postponed due to any investigation, action or proceeding by the U.S. Justice Department or any other Governmental Authority, (iv) the amount of such Account does not exceed the amounts to which the Borrower making such sale is entitled to reimbursement for such eligible Medicare beneficiary under applicable Medicare regulations (provided, that, to the extent that the amount of any such excess is de minimis, the portion of the Account not in excess of the reimbursable amount may be deemed an Eligible Account); (v) all authorization and billing procedures and documentation required in order for the Borrower making such sale to be reimbursed and paid on such Account by the Fiscal Intermediary have been properly completed and satisfied to the extent required for such Borrower to be so reimbursed and paid, and (vi)  the terms of the sale giving rise to such Accounts and all practices of such Borrower and Guarantors with respect to such Accounts comply in all material respects with applicable Federal, State, and local laws and regulations; provided, that, in no event shall the aggregate amount of Medicaid Accounts, Medicare Accounts and Accounts arising from WIC, Supplemental Nutrition Assistance Program or other food stamp programs that are deemed to be Eligible Accounts (but without limitation as to the amount of such Accounts) exceed $7,500,000 or such higher amount (not to exceed $12,500,000) as Administrative Agent may agree in writing;
 

(t)      Accounts arising under any coupon clearing arrangements between a Borrower and a third party, provided, that, the aggregate amount of such Accounts that may be Eligible Accounts shall not exceed $1,000,000 at any time;

(u)     as to Accounts where the Account Debtor is a Third Party Payor (other than for Medicare Accounts and Medicaid Accounts), (i) the Borrower making the sale giving rise to such Account has a valid and enforceable agreement with the Third Party Payor providing for payment to such Borrower or such Borrower is otherwise entitled to payment under the terms of its arrangements with the insurance company that is the Third Party Payor, and such agreement and arrangements are in full force and effect and there is no default thereunder that would be a basis for such Third Party Payor to cease or suspend any payments to such Borrower (including any deductions, setoffs or defenses), (ii) the goods sold giving rise to such Account are of the type that are covered under the agreement or arrangements with the Third Party Payor and the party receiving such goods is entitled to coverage under such agreement or arrangement, (iii) the Borrower making the sale giving rise to such Account has contacted the Third Party Payor or otherwise received confirmation from such Third Party Payor that the party receiving the goods is entitled to coverage under the terms of the agreement with such Third Party Payor and the Borrower is entitled to reimbursement for such Account, (iv)  the amount of such Account does not exceed the amounts to which the Borrower making such sale is entitled to reimbursement for the goods sold under the terms of such agreements or arrangements (provided, that, to the extent that the amount of any such excess is de minimis, the portion of the Account not in excess of the reimbursable amount may be deemed an Eligible Account), (v) there are no contractual or statutory limitations or restrictions on the rights of the Borrower making such sale to assign its rights to payment arising as a result thereof or to grant any security interest therein, (vi) all authorization and billing procedures and documentation required in order for the Borrower making such sale to be reimbursed and paid on such Account by the Third Party Payor have been properly completed and satisfied to the extent required for such Borrower to be so reimbursed and paid and (vii) the terms of the sale giving rise to such Accounts and all practices of such Borrower and Guarantors with respect to such Accounts comply in all material respects with applicable Federal, State, and local laws and regulations; and

(v)     the Account Debtor with respect to such Accounts is not a Sanctioned Person or a Sanctioned Entity.  The criteria for Eligible Accounts set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Accounts that are not Eligible Accounts shall nevertheless be part of the Collateral. The criteria for Eligible Accounts set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Accounts that are not Eligible Accounts shall nevertheless be part of the Collateral.

1.44             “Eligible Cash and Cash Equivalents” shall mean cash and cash equivalents of the Borrowers from time to time deposited in an account in the name of a Borrower maintained with a Lender or any Affiliate of a Lender (excluding any amounts on deposit in any account that is designated to hold cash collateral for Letter of Credit Accommodations, in the Administrative Agent Payment Account or in any other escrow, special purpose or restricted account, such as an account specifically designated for payroll or sales taxes) and subject to a Deposit Account Control Agreement or an Investment Property Control Agreement, as the case may be, in favor of the Administrative Agent (which Deposit Account Control Agreement or Investment Property Control Agreement provides that the Administrative Agent has sole control of the disposition of the amounts so deposited, whether or not a Cash Dominion Event exists), which account is subject to a first priority perfected security interest in favor of the Administrative Agent.

1.45             “Eligible Credit Card Receivables” shall mean, as to each Borrower, Credit Card Receivables of such Borrower which are and continue to be acceptable to Administrative Agent in good faith based on the criteria set forth below.  Credit Card Receivables shall be Eligible Credit Card Receivables if:

(a)     such Credit Card Receivables arise from the actual and bona fide sale and delivery of goods or rendition of services by such Borrower in the ordinary course of the business of such Borrower which transactions are completed in accordance with the terms and provisions contained in any agreements binding on such Borrower or the other party or parties related thereto;

(b)     such Credit Card Receivables are not past due (beyond any stated applicable grace period, if any, therefor) pursuant to the terms set forth in the Credit Card Agreements with the Credit Card Issuer or Credit Card Processor of the credit card or debit card used in the purchase which give rise to such Credit Card Receivables;

(c)     such Credit Card Receivables are not unpaid more than seven (7) days after the date of the sale of Inventory giving rise to such Credit Card Receivables;

(d)    all material procedures required by the Credit Card Issuer or the Credit Card Processor of the credit card or debit card used in the purchase which gave rise to such Credit Card Receivables shall have been followed by such Borrower (including, but not limited to, obtaining any required authorization and approval by such Credit Card Issuer or Credit Card Processor for the sale giving rise to such Credit Card Receivables and submitting all materials required by the Credit Card Issuer or Credit Card Processor obligated in respect of such Credit Card Receivables in order for such Borrower to be entitled to payment in respect thereof) and all documents required for the authorization and approval by such Credit Card Issuer or Credit Card Processor shall have been obtained in connection with the sale giving rise to such Credit Card Receivables;

(e)     such Credit Card Receivables comply with the applicable terms and conditions contained in Section 7.2 of this Agreement;

(f)      the Credit Card Issuer or Credit Card Processor with respect to such Credit Card Receivables has not asserted a counterclaim, defense or dispute and does not have, and does not engage in transactions which may give rise to, any right of setoff against such Credit Card Receivables (other than setoffs to fees and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor with such Borrower as of the Effective Date or as such practices may change as a result of changes to the policies of such Credit Card Issuer or Credit Card Processor applicable to its customers generally and unrelated to the circumstance of such Borrower), but the portion of the Credit Card Receivables owing by such Credit Card Issuer or Credit Card Processor in excess of the amount owing by such Borrower to such Credit Card Issuer or Credit Card Processor pursuant to such fees and chargebacks may be deemed Eligible Credit Card Receivables;

(g)     the Credit Card Issuer or Credit Card Processor with respect to such Credit Card Receivables has not setoff against amounts otherwise payable by such Credit Card Issuer or Credit Card Processor to such Borrower for the purpose of establishing a reserve or collateral for obligations of such Borrower to such Credit Card Issuer or Credit Card Processor (notwithstanding that the Credit Card Issuer or Credit Card Processor may have setoffs for fees and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor with such Borrower as of the Effective Date or as such practices may hereafter change as a result of changes to the policies of such Credit Card Issuer or Credit Card Processor applicable to its customers generally and unrelated to the circumstances of such Borrower);

(h)     there are no facts, events or occurrences which would impair the validity, enforceability or collectability of such Credit Card Receivables;

(i)       such Credit Card Receivables are subject to the first priority, valid and perfected security interest and lien of Administrative Agent, for and on behalf of itself and Lenders, as to such Credit Card Receivables of such Borrower and any goods giving rise thereto are not, and were not at the time of the sale thereof, subject to any security interest or lien in favor of any person other than Administrative Agent except as otherwise permitted in this Agreement, in each case subject to and in accordance with the terms and conditions applicable hereunder to any such permitted security interest or lien;

(j)       the collection of such Credit Card Receivables are not, in Administrative Agent’s good faith discretion, believed to be doubtful, including by reason of the financial condition of the Credit Card Issuer or Credit Card Processor related thereto;

(k)     no event of default has occurred under the Credit Card Agreement of such Borrower with the Credit Card Issuer or Credit Card Processor who has issued the credit card or debit card or handles payments under the credit card or debit card used in the sale which gave rise to such Credit Card Receivables which event of default gives such Credit Card Issuer or Credit Card Processor the right to cease or suspend payments to such Borrower or any Guarantor and no event shall have occurred which gives such Credit Card Issuer or Credit Card Processor the right to setoff against amounts otherwise payable to such Borrower, including on behalf of a Guarantor (other than for then current fees and chargebacks consistent with the current practices of such Credit Card Issuer or Credit Card Processor as of the Effective Date or as such practices may thereafter change as a result of changes to the policies of such Credit Card Issuer or Credit Card Processor applicable to its customers generally and unrelated to the circumstances of such Borrower or any Guarantor), except as may have been waived in writing on terms and conditions reasonably satisfactory to Administrative Agent pursuant to the Credit Card Acknowledgment by such Credit Card Issuer or Credit Card Processor) or the right to establish reserves or establish or demand collateral, and the Credit Card Issuer or Credit Card Processor has not sent any written notice of default and/or notice of its intention to cease or suspend payments to such Borrower in respect of such Credit Card Receivables or to establish reserves or cash collateral for obligations of such Borrower to such Credit Card Issuer or Credit Card Processor, and such Credit Card Agreements are otherwise in full force and effect and constitute the legal, valid, binding and enforceable obligations of the parties thereto; and

(l)       the terms of the sale giving rise to such Credit Card Receivables and all practices of such Borrower and Guarantors with respect to such Credit Card Receivables comply in all material respects with applicable Federal, State, and local laws and regulations.

Credit Card Receivables which would otherwise constitute Eligible Credit Card Receivables pursuant to this Section will not be deemed ineligible solely by virtue of the Credit Card Agreements with respect thereto having been entered into by any Guarantor for the benefit of Borrowers.  The criteria for Eligible Credit Card Receivables set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Credit Card Receivables that are not Eligible Credit Card Receivables shall nevertheless be part of the Collateral.

1.46             “Eligible Equipment” shall mean, as to each Borrower, Equipment owned by such Borrower that is included in the initial appraisal of Equipment received by Administrative Agent after the Effective Date that satisfies the requirements of Section 7.4 hereof, which Equipment is in good order, repair, running and marketable condition (ordinary wear and tear excepted) and in each case acceptable to Administrative Agent in good faith based on the criteria set forth below. In general, Eligible Equipment shall not include: (a) Equipment at premises other than those owned or leased and controlled by any Borrower; (b) Equipment subject to a security interest or lien in favor of any person other than Administrative Agent except those permitted hereunder that are subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent between the holder of such security interest or lien and Administrative Agent); (c)  Equipment located outside the United States of America; (d) Equipment that is not subject to the first priority, valid and perfected security interest of Administrative Agent; (e) damaged or defective Equipment or Equipment not used or usable in the ordinary course of such Borrower’s business as presently conducted.  Any Equipment that is not Eligible Equipment shall nevertheless be part of the Collateral.

1.47             “Eligible In-Transit Inventory” shall mean, as of any date of determination thereof, without duplication of other Eligible Inventory, Inventory:

(a)     which has been shipped within the continental United States or Canada for receipt by a Borrower at a location for Eligible Inventory within five (5) days of the date of determination, but which has not yet been delivered to such Borrower;

(b)     for which the purchase order is in the name of a Borrower and title has passed to such Borrower;

(c)     for which the document of title reflects a Borrower as consignee or, if requested by the Administrative Agent after the occurrence of an Event of Default, names the Administrative Agent as consignee, and in each case as to which the Administrative Agent has control over the documents of title which evidence ownership of the subject Inventory (such as, if applicable and if requested by the Administrative Agent, by the delivery of a Freight Forwarder Agreement);

(d)    which Administrative Agent determines is not subject to any Person’s right of reclamation, repudiation, diversion or stoppage in transit;

(e)     which is insured to the reasonable satisfaction of the Administrative Agent;

(f)      which has not been in transit for more than ten (10) days; and

(g)     which otherwise would constitute Eligible Inventory.

1.48             “Eligible Inventory” shall mean, as to each Borrower, Inventory of such Borrower consisting of finished goods held for resale in the ordinary course of the business of such Borrower, in each case which are acceptable to Administrative Agent in good faith based on the criteria set forth below.  In general, Eligible Inventory shall not include (a) spare parts for equipment; (b) packaging and shipping materials; (c) supplies used or consumed in such Borrower’s business; (d) Inventory at premises other than those owned or leased and controlled by any Borrower, except to the extent that Administrative Agent has received (i) any UCC financing statements or other documents that Administrative Agent may determine to be necessary to perfect its security interest in such Inventory at such location, and (ii) a Collateral Access Agreement executed by the Person owning any such location on terms reasonably acceptable to Administrative Agent; (e) Inventory subject to a security interest or lien in favor of any Person other than Administrative Agent except those permitted in this Agreement that are subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent between the holder of such security interest or lien and Administrative Agent; (f) bill and hold goods; (g) obsolete Inventory; (h) Inventory which is not subject to the first priority, valid and perfected security interest of Administrative Agent; (i) Inventory that is past the expiration date; (j) Inventory that is held for return to vendors (other than undamaged overstock allowed to be returned to a vendor under the return policy between a Borrower and the vendor that is on terms and conditions acceptable to Administrative Agent in good faith); (k) damaged and/or defective Inventory; (l) Inventory purchased or sold on consignment, (m) Inventory that is comprised of goods which are not in compliance with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale (it being understood and agreed that Inventory consisting of a cigarette unit which does not have a Tax Stamp affixed thereto (i) shall otherwise be deemed eligible under this clause (m) so long as such Borrower owns a Tax Stamp that can be affixed to such cigarette unit for sales purposes and (ii) for advance purposes, shall be valued as a cigarette unit as to which no Tax Stamp is affixed thereto), (n) Inventory that has been acquired from a Sanctioned Person or a Sanctioned Entity, and (o) Inventory located outside the United States of America.  The criteria for Eligible Inventory set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Inventory that is not Eligible Inventory shall nevertheless be part of the Collateral. 

1.49             “Eligible Military Receivables” means Military Receivables arising from the sale of the Borrowers’ Inventory which arise in the ordinary course of business, which have been earned by performance.  In determining the amount to be so included, the face amount of such an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, rebates, finance charges or other allowances and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by a Borrower to reduce the amount of such Account.  Except as otherwise agreed by the Administrative Agent, none of the following shall be deemed to be Eligible Military Receivables:

(a)     Military Receivables that are not evidenced by an invoice; provided, that, such Military Receivables shall not be rendered ineligible under this clause (a) if invoices are not then required to be rendered in accordance with the terms of the underlying agreement relating to such Military Receivables and will be, and are, rendered at the earliest time permitted under such agreements;

(b)     Military Receivables that have been outstanding for more than ninety (90) days from the invoice date or more than sixty (60) days past the due date; provided, that, up to $2,000,000 of Military Receivables which have been outstanding for more than ninety (90) days from the invoice date but less than one hundred and eighty (180) days from the invoice date shall, subject to the satisfaction of all other criteria for eligibility hereunder, be deemed Eligible Military Receivables;

(c)     Military Receivables due from any Account Debtor, fifty (50%) percent of whose Military Receivables and Non-Military Receivables are otherwise ineligible under the terms hereof; provided, that, in determining eligibility under this clause (c) the Military Receivable Deduction Amount shall not be considered;

(d)    Military Receivables with respect to which a Borrower does not have good, valid and marketable title thereto, free and clear of any lien or security interest (other than liens and security interests granted to the Administrative Agent pursuant to the Financing Agreements and liens permitted under clause (b) of Section 9.8 hereof);

(e)     without duplication of the Military Receivables Deduction Amount, Military Receivables which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent of such dispute, claim, counterclaim, offset or chargeback;

(f)      Military Receivables which arise out of any sale made not in the ordinary course of business, made on a basis other than upon credit terms usual to the business of a Borrower or are not payable in United States dollars;

(g)     Military Receivables which are owed by any Affiliate;

(h)     Military Receivables for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required to be obtained, effected or given in connection with the performance of such Military Receivable by the Account Debtor or in connection with the enforcement of such Military Receivable by the Administrative Agent have not been duly obtained, effected or given or are not in full force and effect;

(i)       Military Receivables due from an Account Debtor which is the subject of any bankruptcy or insolvency proceeding, has had a trustee or receiver appointed for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business;

(j)       Military Receivables due from any Governmental Authority except to the extent that the subject Account Debtor is the federal government of the United States of America and has complied with the Federal Assignment of Claims Act of 1940 and any similar state legislation;

(k)     Military Receivables representing any manufacturer’s or supplier’s allowances, credits, discounts, incentive plans or similar arrangements entitling a Borrower to discounts on future purchase therefrom;

(l)       Military Receivables arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return, setoff or charge back;

(m)   Military Receivables arising out of sales to Account Debtors outside the United States unless either (i) such Military Receivables are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, acceptable to the Administrative Agent and such irrevocable letter of credit is in the possession of the Administrative Agent, or (ii) such Military Receivables are supported by credit insurance acceptable to the Administrative Agent, naming the Administrative Agent as an additional insured, provided, that, the aggregate amount of such Accounts that may be Eligible Accounts shall not exceed $7,500,000 at any time;

(n)     Military Receivables due from an Account Debtor and its Affiliates, the aggregate of which Military Receivables and Non-Military Receivables due from such Account Debtor represents more than twenty (20%) percent of all then outstanding Military Receivables and Non-Military Receivables owed to the Borrowers;

(o)     Military Receivables constituting permitted investments made in accordance with clause (h) of Section 9.10 hereof;

(p)     Military Receivables due from an Account Debtor who is not, to the Borrowers’ knowledge, an approved vendor for the United States of America, or for whom a  Borrower is no longer, to such Borrower’s knowledge, the official representative of such Account Debtor with the Defense Commissary Agency;

(q)     Military Receivables with respect to which the Account Debtor is a Sanctioned Person or a Sanctioned Entity; or

(r)      such Military Receivable is deemed by the Administrative Agent in good faith not to be eligible for inclusion in the calculation of the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base and the Tranche A-2 Borrowing Base.

The criteria for Eligible Military Receivables set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination or appraisal performed by or on behalf of Administrative Agent after the Effective Date.

1.50             “Eligible Prescription Files” shall mean, as to each Borrower, Prescription Files of such Borrower arising and maintained in the ordinary course of the business of such Borrower and included in an appraisal of Prescription Files received by Administrative Agent in accordance with the requirements of Administrative Agent (including Prescription Files acquired by such Borrower after the Effective Date), in each case which are acceptable to Administrative Agent in good faith based on the criteria set forth below.  In general, Eligible Prescription Files shall not include (a) Prescription Files at premises other than those owned or leased and controlled by any Borrower;  (b) Prescription Files subject to a security interest or lien in favor of any Person other than Administrative Agent except those permitted in this Agreement that are subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent between the holder of such security interest or lien and Administrative Agent; (c) Prescription Files that are not in a form that may be sold or otherwise transferred or are subject to regulatory restrictions on the transfer thereof that are not acceptable to Administrative Agent in good faith, provided that, the existing limitations as of the Effective Date applicable in the States of Ohio and Michigan that the transferee have the licenses required under applicable State law to operate a pharmacy and sell products subject to a prescription shall be deemed acceptable to Administrative Agent.  The criteria for Eligible Prescription Files set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Prescription Files that are not Eligible Prescription Files shall nevertheless be part of the Collateral.

1.51             “Eligible Real Property” shall mean, as to each Borrower, Real Property owned by such Borrower in fee simple which is listed on Schedule 1.51 hereto and included in an appraisal of such Real Property received by Administrative Agent in accordance with the requirements of Administrative Agent and in each case acceptable to Administrative Agent in good faith based on the criteria set forth below.  In general, Eligible Real Property shall not include: (a) Real Property which is not owned and operated by a Borrower (and for this purpose vacant land or Real Property, including any closed retail store location, that is actively managed by a Borrower shall be deemed to be “operated” by such Borrower); (b) Real Property subject to a security interest, lien or mortgage or other encumbrance in favor of any person other than Administrative Agent, except those permitted hereunder that are subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent between the holder of such lien and Administrative Agent or are otherwise acceptable to Administrative Agent); (c) Real Property that is not located in the United States of America; (d) Real Property that is not subject to the valid and enforceable, first priority, perfected security interest, lien and mortgage of Administrative Agent; (e) Real Property where Administrative Agent determines that issues relating to compliance with Environmental Laws adversely affect in any material respect the value thereof or the ability of Administrative Agent to sell or otherwise dispose thereof (but subject to the right of Administrative Agent to establish Reserves after the Effective Date to reflect such adverse affect); (f) Real Property improved with residential housing; (g) any parcel of Real Property for which the applicable Borrower has not delivered to Administrative Agent with respect to such parcel, title insurance, a survey, zoning report, flood certificate, flood insurance in accordance with Section 9.5(b) hereof, environmental studies and other real estate items as required by FIRREA, each of which shall be reasonably satisfactory to Administrative Agent.  Any Real Property that is not Eligible Real Property shall nevertheless be part of the Collateral.

1.52             “Eligible Rolling Stock” shall mean Rolling Stock of a Borrower used by a Borrower in the ordinary course of such Borrower’s business and not held for resale or subject to any lease, in each case which are acceptable to Administrative Agent in good faith based on the criteria set forth below.  In general, Eligible Rolling Stock shall not include: (a) Rolling Stock that is either: (i) not in transit within the continental United States in the ordinary course of business, or (ii) not based at one of the locations in the continental United States listed on Schedule 8.2 to the Information Certificate or such other locations in the continental United States as Administrative Agent may approve in writing, (b) Rolling Stock that is not owned by a Borrower; (c) Rolling Stock that is not subject to an appraisal in accordance with the requirements of Administrative Agent, (d) Rolling Stock that is not in good order, repair, running, operational and marketable condition (ordinary wear and tear excepted), (e) Rolling Stock the ownership of which is not evidenced by a Certificate of Title that has the name of a Borrower noted thereon as the owner of it or is otherwise not properly registered in one of the States of the United States to such Borrower that is entitled to operate such Rolling Stock in the State that has issued such Certificate of Title in accordance with all applicable laws (other than any Rolling Stock the ownership of which is not required to be evidenced by a certificate of title under the laws applicable to it) and Administrative Agent has received such evidence thereof as it may reasonably require; (f) Rolling Stock that does not meet, in all material respects, all applicable material safety or regulatory standards applicable to it for the use for which it is intended or for which it is being used, (g) Rolling Stock that does not meet, in all material respects, all applicable material standards of all motor vehicle laws or other statutes and regulations established by any Governmental Authority or is subject to any licensing or similar requirement that would limit the right of Administrative Agent to sell or otherwise dispose of such Rolling Stock; (h) Rolling Stock that is not used in the business of a Borrower in the ordinary course of business; (i) worn out, obsolete or out of service Rolling Stock; (j) Rolling Stock that is not subject to the first priority, valid and perfected security interest of Administrative Agent (including that Administrative Agent shall have received evidence satisfactory to it that its Lien has been noted on the Certificate of Title with respect to such Rolling Stock); (k) Rolling Stock subject to a security interest or lien of any other person or entity (other than a person with whom Administrative Agent has a satisfactory intercreditor agreement and other than liens permitted under Sections 9.8(b), (c) and (e) herein); (l) any Rolling Stock consisting of automobiles or other non-commercial vehicles; (m) any Rolling Stock on lease or rental to another Person and not operated by a Borrower; (n) any Rolling Stock not covered by an insurance policy of a Borrower in such amounts as are acceptable to Administrative Agent and which provides that Administrative Agent is a loss payee in the case of any loss or damage thereto that results in a claim to proceeds of insurance and (o) Rolling Stock that is damaged or defective.  The criteria for Eligible Rolling Stock set forth above may be revised from time to time by Administrative Agent in its good faith determination to address the results of any collateral and/or field examination performed by or on behalf of Administrative Agent after the Effective Date.  Any Rolling Stock that is not Eligible Rolling Stock shall nevertheless be part of the Collateral.

1.53             “Eligible Transferee” shall mean (a) any Lender (other than a Defaulting Lender); (b) the parent company of any Lender and/or any Affiliate of such Lender which is at least fifty (50%) percent owned by such Lender or its parent company; (c) any Approved Fund, and in each case is approved by Administrative Agent; and (d) any other commercial bank having a combined capital and surplus of at least $250,000,000 or financial institution having a net worth (or the equivalent thereof in the case of an investment partnership, managed account, limited liability company or similar entity) calculated in accordance with applicable generally accepted accounting principles of not less than $100,000,000, or “accredited investor” (as defined in Regulation D under the Securities Act) that is engaged in the business of making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business having a net worth (or the equivalent thereof in the case of an investment partnership, managed account, limited liability company or similar entity) calculated in accordance with applicable generally accepted accounting principles of not less than $100,000,000, and in each case, approved by Administrative Agent, provided, that, (i) neither any Borrower nor any Guarantor or any Affiliate of any Borrower or Guarantor shall qualify as an Eligible Transferee, (ii) no natural person shall qualify as an Eligible Transferee and (iii) no Person to whom any Indebtedness which is in any way subordinated in right of payment to any other Indebtedness of any Borrower or Guarantor shall qualify as an Eligible Transferee, except as Administrative Agent may otherwise specifically agree.

1.54             “Eligible Unaffixed Tax Stamp Inventory” shall mean, at the time of any determination thereof, Eligible Inventory consisting of unaffixed Tax Stamps owned by the Borrowers purchased from any Governmental Authority in any State or Commonwealth which may be returned to any such Governmental Authority for full credit.

1.55             “Environmental Compliance Reserves” shall mean, with respect to Eligible Real Property, any Reserve which Administrative Agent, from time to time in its Permitted Discretion establish for estimable amounts that are reasonably likely to be expended by any of the Borrowers or Guarantors in order for such Borrower or Guarantor and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with Environmental Laws, (b) to correct any such non-compliance with Environmental Laws, or (c) to remedy any condition disclosed in the Phase I Environmental Assessments delivered to the Administrative Agent on or prior to the Effective Date.

1.56             “Environmental Laws” shall mean all foreign, Federal, State and local laws (including common law), legislation, rules, codes, licenses, permits (including any conditions imposed therein), authorizations, judicial or administrative decisions, injunctions or agreements between any Borrower or Guarantor and any Governmental Authority, (a) relating to pollution and the protection, preservation or restoration of the environment (including air, water vapor, surface water, ground water, drinking water, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or to human health or safety, (b)  relating to the exposure to, or the use, storage, recycling, treatment, generation, manufacture, processing, distribution, transportation, handling, labeling, production, release or disposal, or threatened release, of Hazardous Materials, or (c) relating to all laws with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Materials.  The term “Environmental Laws” includes (i) the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Federal Superfund Amendments and Reauthorization Act, the Federal Water Pollution Control Act of 1972, the Federal Clean Water Act, the Federal Clean Air Act, the Federal Resource Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments thereto), the Federal Solid Waste Disposal and the Federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the Federal Safe Drinking Water Act of 1974, (ii) applicable state counterparts to such laws and (iii) any common law or equitable doctrine that may impose liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Hazardous Materials.

1.57             “Equipment” shall mean, as to each Borrower and Guarantor, all of such Borrower’s and Guarantor’s now owned and hereafter acquired equipment, wherever located, including machinery, data processing and computer equipment (whether owned or licensed and including embedded software), vehicles, tools, furniture, fixtures, all attachments, accessions and property now or hereafter affixed thereto or used in connection therewith, and substitutions and replacements thereof, wherever located.

1.58             “ERISA” shall mean the Employee Retirement Income Security Act of 1974, together with all rules, regulations and interpretations thereunder or related thereto.

1.59             “ERISA Affiliate” shall mean any person required to be aggregated with any Borrower, any Guarantor or any of its or their respective Subsidiaries under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.

1.60             “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Plan; (b) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section 412 of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the occurrence of a non-exempt “prohibited transaction” with respect to which any Borrower, Guarantor or any of its or their respective Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which any Borrower, Guarantor or any of its or their respective Subsidiaries could otherwise be liable; (f) a complete or partial withdrawal by any Borrower, Guarantor or any ERISA Affiliate from a Multiemployer Plan or a cessation of operations which is treated as such a withdrawal or notification that a Multiemployer Plan is in reorganization; (g) the filing of a notice of intent to terminate a Plan subject to Title IV of ERISA, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the Pension Benefit Guaranty Corporation to terminate a Plan; (h) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (i) the imposition of any liability under Title IV of ERISA, other than the Pension Benefit Guaranty Corporation premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower, Guarantor or any ERISA Affiliate in excess of $10,000,000 and (j) any other event or condition with respect to a Plan including any Plan subject to Title IV of ERISA maintained, or contributed to, by any ERISA Affiliate that could reasonably be expected to result in an increase of $10,000,000 or more in the amount required to be paid by any Borrower in any year in excess of the amount such Borrower would have been required but for such event or condition.

1.61             “Eurodollar Rate” shall mean with respect to the Interest Period for a Eurodollar Rate Loan, the rate per annum rate appearing on Macro*World’s (www.capitalmarkets.mworld.com; the “Service”) Page BBA LIBOR - USD (or on any successor or substitute page of such Service, or any successor to or substitute for such Service) 2 Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the Eurodollar Rate Loan requested (whether as an initial Eurodollar Rate Loan or as a continuation of a Eurodollar Rate Loan or as a conversion of a Base Rate Loan to a Eurodollar Rate Loan) by Borrowers in accordance with this Agreement, which determination shall be made by Administrative Agent and shall be conclusive in the absence of manifest error.

1.62             “Eurodollar Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Adjusted Eurodollar Rate in accordance with the terms hereof.

1.63             “Event of Default” shall mean the occurrence or existence of any event or condition described in Section 10.1 hereof.

1.64             “Excess Availability” shall mean the amount, as determined by Administrative Agent, calculated at any date, equal to:

(a)     the lesser of:  (i)  the Total Borrowing Base and (ii) the Maximum Credit (in each case under (i) or (ii) after giving effect to any Reserves other than any Reserves in respect of Letter of Credit Accommodations), minus

(b)     the sum of:  (i) the amount of all then outstanding and unpaid Obligations of such Borrower (but not including for this purpose Obligations of such Borrower arising pursuant to any guarantees in favor of Administrative Agent and Lenders of the Obligations of the other Borrowers or any outstanding Letter of Credit Accommodations), plus (ii) the amount of all Reserves then established in respect of Letter of Credit Accommodations, plus (iii) the aggregate amount of all then outstanding and unpaid trade payables and other obligations of such Borrower which are outstanding more than thirty (30) days past due as of such time (other than trade payables or other obligations being contested or disputed by such Borrower in good faith), plus (iv) without duplication, the amount of checks issued by such Borrower to pay trade payables and other obligations which are more than thirty (30) days past due as of such time (other than trade payables or other obligations being contested or disputed by such Borrower in good faith), but not yet sent.

1.65             “Exchange Act” shall mean the Securities Exchange Act of 1934, together with all rules, regulations and interpretations thereunder or related thereto.

1.66             “Existing Credit Agreements” shall have the meaning set forth in the recitals to this Agreement.

1.67             “Existing Letters of Credit” shall have the meaning set forth in the recitals to this Agreement.

1.68             “Existing Nash-Finch Agent” shall have the meaning set forth in the recitals to this Agreement.

1.69             “Existing Nash-Finch Borrowers” shall have the meaning set forth in the recitals to this Agreement.

1.70             “Existing Nash-Finch Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.

1.71             “Existing Nash-Finch Lenders” shall have the meaning set forth in the recitals to this Agreement.

1.72             “Existing Nash-Finch Letters of Credit” shall have the meaning set forth in the recitals to this Agreement.

1.73             “Existing Nash-Finch Loans” shall have the meaning set forth in the recitals to this Agreement.

1.74             “Existing Nash-Finch Security Agreement” shall mean the Security Agreement, dated December 21, 2011, by and among Existing Nash-Finch Agent and Existing Nash-Finch Borrowers.

1.75             “Existing Spartan Agent” shall have the meaning set forth in the recitals to this Agreement.

1.76             “Existing Spartan Borrowers” shall have the meaning set forth in the recitals to this Agreement.

1.77             Existing Spartan Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.

1.78             “Existing Spartan Lenders” shall have the meaning set forth in the recitals to this Agreement.

1.79             “Existing Spartan Letters of Credit” shall have the meaning set forth in the recitals to this Agreement.

1.80             “Existing Spartan Loans” shall have the meaning set forth in the recitals to this Agreement.

1.81             “Farm Products” shall mean crops, livestock, supplies used or produced in a farming operation and products of crops or livestock and including farm products as such term is defined in the Food Security Act and the UCC.

1.82             “Farm Products Sellers” shall mean, collectively, sellers or suppliers to any Borrower of any farm product (as such term is defined in the Food Security Act and the UCC) and including any perishable agricultural commodity (as defined in PACA) or livestock (as defined in the PSA), meat, meat food products or livestock products derived therefrom or any poultry or poultry products derived therefrom; sometimes being referred to herein individually as a “Farm Product Seller”.

1.83             “FATCA” shall mean current Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is that is substantively comparable and not materially more burdensome to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

1.84             “Federal Funds Rate” shall mean, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by it.

1.85             “Fee Letter” shall mean, the Fee Letter, dated July 21, 2013, by and among Parent, Wells Fargo, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

1.86             “Financing Agreements” shall mean, collectively, this Agreement and all notes, guarantees, security agreements, deposit account control agreements, investment property control agreements, intercreditor agreements and all other agreements, documents and instruments now or at any time hereafter executed and/or delivered by any Borrower or Obligor in connection with this Agreement; provided, that, in no event shall the term Financing Agreements be deemed to include any Hedge Agreement or any agreement evidencing a Bank Product.

1.87             “FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.

1.88             “Fiscal Intermediary” shall mean any qualified insurance company or other financial institution that has entered into an ongoing relationship with any Governmental Authority to make payments to payees under Medicare, Medicaid or any other Federal, State or local public health care or medical assistance program pursuant to any of the Health Care Laws.

1.89             “Fixed Charge Coverage Ratio” shall mean, as to any Person, with respect to any period, the ratio of (a) the amount equal to EBITDA of such Person for such period to (b) the Fixed Charges of such Person for such period.

1.90             “Fixed Charges” shall mean, as to any Person, with respect to any period, the sum of, without duplication, (a) all cash Interest Expense during such period, plus (b) all Capital Expenditures during such period, plus (c) all regularly scheduled (as determined at the beginning of the respective period) principal payments in respect of Indebtedness for borrowed money (excluding payments in respect of Revolving Loans which do not result in a reduction of the Maximum Credit), including, without limitation, scheduled reductions in the amounts of Tranche A Real Estate Availability, Tranche A Equipment Availability and Tranche A Rolling Stock Availability in accordance with the definitions of such terms, and Indebtedness with respect to Capital Leases (and without duplicating items (a) and (c) of this definition, the interest component with respect to Indebtedness under Capital Leases) during such period, plus (d) taxes paid during such period in cash.

1.91             “Food Security Act” shall mean the Food Security Act of 1984, 7 U.S.C. Section 1631 et. seq., as the same now exists or may hereafter from time to time be amended, modified, recodified or supplemented, together with all rules and regulations thereunder.

1.92             “Food Security Act Notices” shall have the meaning set forth in Section 8.20 hereof.

1.93             “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which any Borrower is a resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

1.94             “Flood Insurance Laws” means, collectively, the following (in each case as now or hereafter in effect or any successor statute thereto): (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii) the National Flood Insurance Reform Act of 1994 and (iv) the Flood Insurance Reform Act of 2004.

1.95             “FRB” means the Board of Governors of the Federal Reserve System of the United States.

1.96             “Freight Forwarder Agreement” shall mean an agreement, reasonably acceptable in form and substance to the Administrative Agent, among a Borrower, a Freight Forwarder, and the Administrative Agent, in which the Freight Forwarder acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Administrative Agent and agrees, upon notice from the Administrative Agent, to hold and dispose of the subject Inventory solely as directed by the Administrative Agent.

1.97             “Freight Forwarders” shall mean the persons listed on Schedule 1.97 hereto or such other person or persons as may be selected by Borrowers after the Effective Date and after written notice by Lead Borrower to Administrative Agent who are reasonably acceptable to Administrative Agent to handle the receipt of Inventory within the United States of America or Canada and/or to clear Inventory through the Bureau of Customs and Border Protection (formerly the Customs Service), or its Canadian equivalent, or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by Borrowers from outside the United States of America or Canada (such persons sometimes being referred to herein individually as a “Freight Forwarder”), provided, that, as to each such person, (a) Administrative Agent shall have received a Freight Forwarder Agreement by such person in favor of Administrative Agent (in form and substance reasonably satisfactory to Administrative Agent) duly authorized, executed and delivered by such person, (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof.

1.98             “Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Accommodations other than outstanding Letter of Credit Accommodations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or subject to Letter of Credit Collateralization in accordance with the terms hereof, and (b) with respect to Swing Line Lender, such Defaulting Lender’s Pro Rate Share of outstanding Swing Line Loans made by Swing Lender other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

1.99             “Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

1.100            “GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board which are applicable to the circumstances as of the date of determination consistently applied, except that, for purposes of Section 9.9(f)(viii) hereof, GAAP shall be determined on the basis of such principles in effect on the Effective Date and consistent with those used in the preparation of the most recent audited financial statements delivered to Administrative Agent prior to the Effective Date.

1.101            “Governmental Authority” shall mean any nation or government, any state, province, or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

1.102            “Guarantors” shall have the meaning assigned thereto in the recitals to this Agreement.

1.103            “Hazardous Materials” shall mean any hazardous, toxic or dangerous substances, materials and wastes, including hydrocarbons (including naturally occurring or man-made petroleum and hydrocarbons), flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, polychlorinated biphenyls, pesticides, herbicides, sewage, sludge, industrial slag, solvents and/or any other similar substances, materials, or wastes and including any other substances, materials or wastes that are or become regulated under any Environmental Law (including any that are or become classified as hazardous or toxic under any Environmental Law).

1.104         “Health Care Laws” shall mean all Federal, State and local laws, rules, regulations, interpretations, guidelines, ordinances and decrees primarily relating to patient healthcare, any health care provider, medical assistance and cost reimbursement program, as now or at any time hereafter in effect, applicable to any Borrower or Guarantor, including, but not limited to, the Social Security Act, the Social Security Amendments of 1972, the Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977, the Medicare and Medicaid Patient and Program Protection Act of 1987 and HIPAA.

1.105         “Hedge Agreement” shall mean an agreement between any Borrower or Guarantor and Administrative Agent or any Bank Product Provider that is a swap agreement as such term is defined in 11 U.S.C. Section 101, and including any rate swap agreement, basis swap, forward rate agreement, commodity swap, interest rate option, forward foreign exchange agreement, spot foreign exchange agreement, rate cap agreement rate, floor agreement, rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency option, any other similar agreement (including any option to enter into any of the foregoing or a master agreement for any the foregoing together with all supplements thereto) for the purpose of protecting against or managing exposure to fluctuations in interest or exchange rates, currency valuations or commodity prices; sometimes being collectively referred to herein as “Hedge Agreements”.

1.106            “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as the same now exists or may hereafter from time to time be amended, modified, recodified or supplemented, together with all rules and regulations thereunder.

1.107         “Indebtedness” shall mean, with respect to any Person, any liability, whether or not contingent, (a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments; (b) representing the balance deferred and unpaid of the purchase price of any property or services (except any such balance that constitutes an account payable to a trade creditor (whether or not an Affiliate) created, incurred, assumed or guaranteed by such Person in the ordinary course of business of such Person in connection with obtaining goods, materials or services that is not overdue by more than ninety (90) days, unless the trade payable is being contested in good faith); (c) all obligations as lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital Leases; (d) any contractual obligation, contingent or otherwise, of such Person to pay or be liable for the payment of any indebtedness described in this definition of another Person, including, without limitation, any such indebtedness, directly or indirectly guaranteed, or any agreement to purchase, repurchase, or otherwise acquire such indebtedness, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof, or to maintain solvency, assets, level of income, or other financial condition; (e) all obligations with respect to redeemable stock and redemption or repurchase obligations under any Capital Stock or other equity securities issued by such Person; (f) all reimbursement obligations and other liabilities of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for such Person’s account; (g) all indebtedness of such Person in respect of indebtedness of another Person for borrowed money or indebtedness of another Person otherwise described in this definition which is secured by any consensual lien, security interest, collateral assignment, conditional sale, mortgage, deed of trust, or other encumbrance on any asset of such Person, whether or not such obligations, liabilities or indebtedness are assumed by or are a personal liability of such Person, all as of such time; (h) all net obligations, liabilities and indebtedness of such Person (marked to market) arising under swap agreements, cap agreements and collar agreements and other agreements or arrangements designed to protect such person against fluctuations in interest rates or currency or commodity values; (i) all obligations owed by such Person under License Agreements with respect to non-refundable, advance or minimum guarantee royalty payments; and (j) the principal and interest portions of all rental obligations of such Person under any synthetic lease or similar off-balance sheet financing where such transaction is considered to be borrowed money for tax purposes but is classified as an operating lease in accordance with GAAP.

1.108         “Information Certificate” shall mean, collectively, the Information Certificates of Borrowers and Guarantors constituting Exhibit C hereto containing material information with respect to Borrowers and Guarantors, their respective businesses and assets provided by or on behalf of Borrowers and Guarantors to Administrative Agent in connection with the preparation of this Agreement and the other Financing Agreements and the financing arrangements provided for herein.

1.109         “Intellectual Property” shall mean, as to each Borrower and Guarantor, such Borrower’s and Guarantor’s now owned and hereafter arising or acquired:  patents, patent rights, patent applications, copyrights, works which are the subject matter of copyrights, copyright registrations, trademarks, trade names, trade styles, trademark and service mark applications, and licenses and rights to use any of the foregoing; all extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing; all rights to sue for past, present and future infringement of any of the foregoing; inventions, trade secrets, formulae, processes, compounds, drawings, designs, blueprints, surveys, reports, manuals, and operating standards; goodwill (including any goodwill associated with any trademark or the license of any trademark); customer and other lists in whatever form maintained; trade secret rights, copyright rights, rights in works of authorship, domain names and domain name registration; software and contract rights relating to computer software programs, in whatever form created or maintained.

1.110            “Interest Expense” shall mean, for any period, as to any Person, as determined in accordance with GAAP, the total interest expense of such Person, whether paid or accrued during such period (including the interest component of Capital Leases for such period), including, without limitation, discounts in connection with the sale of any Accounts, but excluding interest paid in property other than cash and any other interest expense not payable in cash.

1.111         “Interest Period” shall mean for any Eurodollar Rate Loan, a period of approximately one (1) week or one (1), three (3) or six (6) months duration as any Borrower may elect, the exact duration to be determined in accordance with the customary practice in the applicable Eurodollar Rate market; provided, that, (a) if capable of being provided by each Lender, the Eurodollar Rate shall also be available for periods of two (2) months or twelve (12) months and (b) such Borrower may not elect an Interest Period which will end after the last day of the then-current term of this Agreement.

1.112         Interest Rate” shall mean,

(a)     Subject to clause (b) of this definition below:

(i)          as to Tranche A Revolving Loans that are Base Rate Loans, a rate equal to the then Applicable Margin for such Base Rate Loans on a per annum basis plus the Base Rate;

(ii)        as to Tranche A Revolving Loans that are Eurodollar Rate Loans, a rate equal to the then Applicable Margin for such Eurodollar Rate Loans on a per annum basis plus the Adjusted Eurodollar Rate (in each case, based on the Eurodollar Rate applicable for the relevant Interest Period, whether such rate is higher or lower than any rate previously quoted to a Borrower);

(iii)      as to Tranche A-1 Revolving Loans that are Base Rate Loans, a rate equal to the then Applicable Margin for such Base Rate Loans on a per annum basis plus the Base Rate;

(iv)      as to Tranche A-1 Revolving Loans that are Eurodollar Rate Loans, a rate equal to the then Applicable Margin for such Eurodollar Rate Loans on a per annum basis plus the Adjusted Eurodollar Rate (in each case, based on the Eurodollar Rate applicable for the relevant Interest Period, whether such rate is higher or lower than any rate previously quoted to a Borrower);

(v)        as to Tranche A-2 Term Loans that are Base Rate Loans, a rate equal to the then Applicable Margin for such Base Rate Loans on a per annum basis plus the Base Rate; and

(vi)      as to Tranche A-2 Term Loans that are Eurodollar Rate Loans, a rate equal to the then Applicable Margin for such Eurodollar Rate Loans on a per annum basis plus the Adjusted Eurodollar Rate (in each case, based on the Eurodollar Rate applicable for the relevant Interest Period, whether such rate is higher or lower than any rate previously quoted to a Borrower).

(b)     Notwithstanding anything to the contrary contained in clause (a) of this definition, the Applicable Margin otherwise used to calculate the Interest Rate for Base Rate Loans and Eurodollar Rate Loans shall be the highest percentage set forth in the definition of the term Applicable Margin for each category of Loans (without regard to the amount of Monthly Average Excess Availability) plus two (2%) percent per annum, at Administrative Agent’s option,  (i) for the period (A) from and after the effective date of termination or non-renewal hereof until Administrative Agent and Lenders have received full and final payment of all outstanding and unpaid Obligations which are not contingent and cash collateral or letter of credit, as Administrative Agent may specify, in the amounts and on the terms required under Section 13.1 hereof for contingent Obligations (notwithstanding entry of a judgment against any Borrower or Guarantor) and (B) from and after the date of the occurrence of an Event of Default and for so long as such Event of Default is continuing and (ii) on (A) Tranche A Revolving Loans to a Borrower at any time outstanding in excess of the Tranche A Borrowing Base, (B) Tranche A-1 Revolving Loans to a Borrower at any time outstanding in excess of the Tranche A-1 Borrowing Base, and (C) Tranche A-2 Term Loans to a Borrower at any time outstanding in excess of the Tranche A-2 Borrowing Base (in each case, whether or not such excess(es) arise or are made with or without the knowledge or consent of Administrative Agent or any Lender and whether made before or after an Event of Default).

1.113         “Inventory” shall mean, as to each Borrower and Guarantor, all of such Borrower’s and Guarantor’s now owned and hereafter existing or acquired goods, wherever located, which (a) are leased by such Borrower or Guarantor as lessor; (b) are held by such Borrower for sale or lease or to be furnished under a contract of service; (c) are furnished by such Borrower or Guarantor under a contract of service; or (d) consist of raw materials, work in process, finished goods or materials used or consumed in its business, and which includes, without limitation, any Tax Stamps which are required to be affixed to cigarettes or other tobacco-based products, such as cigars, pipe tobacco, chewing tobacco and snuff, to permit the sale thereof, whether such stamps are affixed or unaffixed to such tobacco products.

1.114         “Investment Property Control Agreement” shall mean an agreement in writing, in form and substance satisfactory to Administrative Agent, by and among Administrative Agent, any Borrower or Guarantor (as the case may be) and any securities intermediary, commodity intermediary or other person who has custody, control or possession of any investment property of such Borrower or Guarantor agreeing that such securities intermediary, commodity intermediary or other person will comply with entitlement orders originated by Administrative Agent with respect to such investment property, or other instructions of Administrative Agent and including such other terms and conditions as Administrative Agent may require.

1.115         “Issuing Bank” shall have the meaning set forth for such term in Section 2.4(a) hereof.

1.116         “Joinder Agreement” shall mean an agreement, in form and substance reasonably satisfactory to Administrative Agent, pursuant to which, among other things, a Person becomes a party to, and bound by the terms of, this Agreement and/or the other Financing Agreements as a Borrower or a Guarantor, as the Administrative Agent may reasonably determine.

1.117         “Lead Borrower” shall mean Spartan Stores, Inc., a Michigan corporation in its capacity as Lead Borrower on behalf of itself and the other Borrowers pursuant to Section 6.7 hereof and it successors and assigns in such capacity.

1.118         “Lenders” shall mean the financial institutions who are signatories hereto as Lenders (including Swing Line Lender) and other persons made a party to this Agreement as a Lender in accordance with Section 13.7 hereof, and their respective successors and assigns; each sometimes being referred to herein individually as a “Lender”.

1.119         “Letter of Credit Accommodations” shall mean, collectively, the letters of credit, merchandise purchase or other guaranties which are from time to time either (a) issued or opened by an Issuing Bank for the account of any Borrower or Obligor or (b) with respect to which Administrative Agent or Lenders have agreed to indemnify the issuer or guaranteed to the issuer the performance by any Borrower or Obligor of its obligations to such issuer; sometimes being referred to herein individually as “Letter of Credit Accommodation”.  “Letter of Credit Accommodations” as such term is used herein shall include for all purposes hereunder the Existing Letters of Credit.

1.120         “Letter of Credit Collateralization” shall mean either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Administrative Agent, including provisions that specify that the letter of credit fee and all usage charges set forth in this Agreement will continue to accrue while the Letter of Credit Accommodations are outstanding) to be held by Administrative Agent in an amount equal to one hundred five (105%) percent of the then outstanding Letter of Credit Accommodations, (b) causing the letters of credit issued under this Agreement to be returned to the Issuing Bank, or (c) providing Administrative Agent with a standby letter of credit, in form and substance reasonably satisfactory to Administrative Agent, from a commercial bank acceptable to Administrative Agent (in its sole discretion) in an amount equal to one hundred five (105%) percent of the then outstanding Letter of Credit Accommodations; it being understood that the letter of credit fee and all usage charges set forth in this Agreement will continue to accrue while the Letter of Credit Accommodations are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit.

1.121         “License Agreements” shall have the meaning set forth in Section 8.11 hereof.

1.122         “Loan Limit” shall mean the lesser of (a) the Total Borrowing Base or (b) the Maximum Credit.

1.123         “Loans” shall mean, collectively, the Revolving Loans, the Swing Line Loans and the Tranche A-2 Term Loans

1.124         “Material Adverse Effect” shall mean a material adverse effect on (a) the financial condition, business, performance or operations of Borrowers and Guarantors (taken as a whole) or the legality, validity or enforceability of this Agreement or any of the other Financing Agreements; (b) the legality, validity, enforceability, perfection or priority of the security interests and liens of Administrative Agent upon the Collateral (taken as a whole); (c) the Collateral (taken as a whole) or its value (taken as a whole),  (d) the ability of Borrowers (taken as a whole) to repay the Obligations or of Borrowers (taken as a whole) to perform their obligations under this Agreement or any of the other Financing Agreements as and when to be performed; or (e) the ability of Administrative Agent or any Lender to enforce the Obligations or realize upon the Collateral or otherwise with respect to the rights and remedies of Administrative Agent and Lenders under this Agreement or any of the other Financing Agreements (taken as a whole).

1.125         “Material Contract” shall mean (a) any contract or other agreement (other than the Financing Agreements or contracts relating to the purchase or sale of Inventory in the ordinary course of business)), written or oral, of any Borrower or Guarantor involving monetary liability of or to any Person in an amount in excess of $10,000,000 in any fiscal year and (b) any other contract or other agreement (other than the Financing Agreements or contracts relating to the purchase or sale of Inventory in the ordinary course of business), whether written or oral, to which any Borrower or Guarantor is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would have a Material Adverse Effect.

1.126         “Maturity Date” shall the meaning set forth in Section 13.1 hereof.

1.127         “Maximum Credit” shall mean the sum of the Tranche A Maximum Credit, the Tranche A-1 Maximum Credit and the Tranche A-2 Maximum Credit.

1.128         “Medicaid” shall mean the health care financial assistance program jointly financed and administered by the Federal and State governments under Title XIX of the Social Security Act.

1.129         “Medicaid Account” shall mean any Accounts of Borrowers or Guarantors arising pursuant to services rendered by Borrowers or Guarantors to eligible Medicaid beneficiaries to be paid by a Fiscal Intermediary or by the United States of America acting under the Medicaid program, any State or the District of Columbia acting pursuant to a health plan adopted pursuant to Title XIX of the Social Security Act or any other Governmental Authority under Medicaid.

1.130         “Medicare” shall mean the health care financial assistance program under Title XVIII of the Social Security Act.

1.131         “Medicare Account” shall mean any Accounts of Borrowers or Guarantors arising pursuant to goods sold or services rendered by Borrowers or Guarantors to eligible Medicare beneficiaries to be paid by a Fiscal Intermediary or by the United States of America acting under the Medicare program or any other Governmental Authority under Medicare.

1.132         “Merger Agreement Representations” shall mean the representations made by Nash-Finch in the Nash-Finch Merger Agreement as are material to the interests of Administrative Agent, Arrangers and Lenders, but only to the extent that Parent, SSD or any Affiliate of either of them has the right to terminate the obligations under the Nash-Finch Merger Agreement as a result of a breach of such representations.

1.133         “Military Receivables” shall mean Accounts (other than Credit Card Receivables and Pharmacy Receivables) due to a Borrower from Account Debtors arising from the sale of Inventory to such Account Debtor, which Inventory is resold by the Account Debtor to a United States military commissary or exchange.

1.134         “Military Receivables Deduction Amount” shall mean, as to any Military Receivable, the sum of one hundred (100%) percent of contra accounts and other offsets which the applicable Account Debtor may have with respect to such Military Receivables; provided, that,

(a)     until the date one hundred eighty (180) days after the Effective Date (or such longer period as Administrative Agent may agree but not to exceed an additional one hundred eighty (180) days without the consent of the Required Lenders), Administrative Agent may include in the Military Receivables Deduction Amount only such contra accounts and other offsets arising in connection with the purchase of goods from suppliers obligated on Military Receivables to the extent such purchases relate to the military distribution division of Nash Finch and to Grocery Supply Acquisition Corp. (so long as the amount of the Excess Availability is greater than the additional amount that the Military Receivables Deduction Amount would be if all amounts owing by Nash Finch and Grocery Supply Acquisition Corp. to such suppliers were included in the Military Receivables Deduction Amount) and

(b)     on and after the end of such period, Administrative Agent may include in the Military Receivables Deduction Amount all amounts owing by Nash Finch (including, but not limited to, the military distribution division) and Grocery Supply Acquisition Corp. to the suppliers obligated on Military Receivables, except that in the event that Lead Borrower shall establish a separate subsidiary or subsidiaries subject to, and in accordance with the terms hereof, that is engaged in the business of purchasing goods and delivering goods giving rise to Military Receivables (in addition to Grocery Supply Acquisition Corp.), then only the amounts owing by any such subsidiary and Grocery Supply Acquisition Corp. to such suppliers shall be included in the Military Receivables Deduction Amount.

1.135         “Monthly Average Excess Availability” shall mean, at any time, the average of the aggregate amount of the Excess Availability during the immediately preceding calendar month as calculated by Administrative Agent in good faith.

1.136         “Mortgages” shall mean, collectively, the mortgages, deeds of trust and deeds to secure debt with respect to Real Property of any Borrower or Guarantor in favor of, or for the benefit of Administrative Agent, as set forth on Schedule 1.136 hereto, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

1.137         “Multiemployer Plan” shall mean a “multi-employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by any Borrower, Guarantor or any ERISA Affiliate.

1.138         “Nash-Finch Merger” shall mean the merger of Nash-Finch with and into SSD pursuant to the Nash-Finch Merger Documents.

1.139         “Nash-Finch Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of July 21, 2013, by and among Parent, SSD and Nash-Finch, together with all exhibits, schedules, annexes and other disclosure letters thereto.

1.140         “Nash-Finch Merger Documents” shall mean the Nash-Finch Merger Agreement and all other material documents related thereto and executed in connection therewith.

1.141         “Net Proceeds” shall mean the aggregate cash proceeds payable to any Borrower or Guarantor in respect of any sale, lease, transfer or other disposition of any assets or properties, or interest in assets and properties or as proceeds of any loans or other financial accommodations provided to any Borrower or Guarantor or as proceeds from the issuance and/or sale of any Capital Stock, in each case net of the reasonable and customary direct costs relating to such sale, lease, transfer or other disposition or loans or other financial accommodation or issuance and/or sale (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), and amounts applied to the repayment of indebtedness secured by a valid and enforceable lien on the asset or assets that are the subject of such sale or other disposition required to be repaid in connection with such transaction. Net Proceeds shall exclude any non-cash proceeds received from any sale or other disposition or other transaction, but shall include such proceeds when and as converted by any Borrower or Guarantor to cash or other immediately available funds.

1.142         “Net Recovery Percentage” shall mean the fraction, expressed as a percentage, as to Inventory, (a) the numerator of which is the amount equal to the amount of the recovery in respect of the Inventory at such time, as to Inventory of the Retail Division, on a “net orderly liquidation value” basis, and as to Inventory of the Distribution Division, on a “net orderly liquidation value” basis as set forth in the most recent acceptable appraisal of Inventory received by Administrative Agent in accordance with Section 7.3, in each case, net of operating expenses, liquidation expenses and commissions, and (b) the denominator of which is the applicable original cost of the aggregate amount of the Inventory subject to such appraisal.

1.143         “Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

1.144         “Non-Military Receivables” shall mean Accounts due to a Borrower or a Guarantor which do not constitute Military Receivables.

1.145         “Non-Operating Assets” shall mean assets consisting of closed stores, vacant land or closed distribution centers or other facilities that are not currently used in the operations of Parent or its subsidiaries as set forth on Schedule 1.145 hereto.

1.146         “Obligations” shall mean (a) any and all Loans, Letter of Credit Accommodations and all other obligations, liabilities and indebtedness of every kind, nature and description owing by any or all of Borrowers to Administrative Agent or any Lender and/or any of their Affiliates, including principal, interest, charges, fees, costs and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under this Agreement or any of the other Financing Agreements, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any case with respect to such Borrower under the United States Bankruptcy Code or any similar statute (including the payment of interest and other amounts which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, or secured or unsecured and (b) for purposes only of Section 5.1 hereof and subject to the priority in right of payment set forth in Section 6.4 hereof, all obligations, liabilities and indebtedness of every kind, nature and description owing by any Borrower or Guarantor to Administrative Agent or any Bank Product Provider arising under or pursuant to any Bank Products, whether now existing or hereafter arising, provided, that, (i) as to any such obligations, liabilities and indebtedness arising under or pursuant to a Hedge Agreement, the same shall only be included within the Obligations if upon Administrative Agent’s request, Administrative Agent shall have entered into an agreement, in form and substance reasonably satisfactory to Administrative Agent, with the Bank Product Provider that is a counterparty to such Hedge Agreement, as acknowledged and agreed to by Borrowers, providing for the delivery to Administrative Agent by such counterparty of information with respect to the amount of such obligations and providing for the other rights of Administrative Agent and such Bank Product Provider in connection with such arrangements and (ii) Administrative Agent shall have received from any Bank Product Provider, other than Wells and its Affiliates, written notice that (A) such Bank Product Provider has entered into a transaction to provide Bank Products to such Borrower and (B) the obligations arising pursuant to such Bank Products provided to such Borrower constitute Obligations entitled to the benefits of the security interest of Administrative Agent granted hereunder.  In no event shall any Bank Product Provider acting in such capacity to whom such obligations, liabilities or indebtedness are owing be deemed a Lender for purposes hereof to the extent of and as to such obligations, liabilities or indebtedness except that each reference to the term “Lender” in Sections 12.1, 12.2, 12.5, 12.6, 12.7, 12.9, 12.12 and 13.6 hereof shall be deemed to include such Bank Product Provider and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any security interest or lien in favor of Administrative Agent.  The “Obligations” shall not include, with respect to any Borrower or Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Borrower or Guarantor of, or the grant by such Borrower or Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Borrower’s or Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee of such Borrower or Guarantor becomes effective with respect to such related Swap Obligation.

1.147         “Obligor” shall mean any guarantor, endorser, acceptor, surety or other person liable on or with respect to the Obligations or who is the owner of any property which is security for the Obligations (including, without limitation, Guarantors), other than Borrowers.

1.148         “OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.

1.149         “Other Taxes” shall have the meaning set forth in Section 6.11(c) hereof.

1.150         “PACA” shall mean the Perishable Agricultural Commodities Act, 1930, as amended, 7 U.S.C. Section 499a et. seq., as the same now exists or may hereafter from time to time be amended, modified, recodified or supplemented, together with all rules and regulations thereunder.

1.151         “PSA” shall mean the Packers and Stockyard Act of 1921, 7 U.S.C. Section 181 et. seq., as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all rules, regulations and interpretations thereunder or related thereto.

1.152         “Parent” shall mean Spartan Stores, Inc., a Michigan corporation, and its successors and assigns.

1.153         “Participant” shall mean any financial institution that acquires and holds a participation in the interest of any Lender in any of the Loans and Letter of Credit Accommodations in conformity with the provisions of Section 13.7 of this Agreement governing participations.

1.154         “Patriot Act” shall have the meaning set forth in Section 8.32 hereof.

1.155         “Permits” shall have the meaning set forth in Section 8.7(b) hereof.

1.156         “Permitted Discretion” shall mean a determination made in good faith in the exercise of Administrative Agent’s reasonable business judgment based on how an asset-based lender with similar rights providing a credit facility of the type set forth herein would act in similar circumstances at the time with the information then available to it.

1.157         “Person” or “person” shall mean any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the Code), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.

1.158         “Pharmaceutical Laws” shall mean federal, state and local laws, rules or regulations, codes, orders, decrees, judgments or injunctions issued, promulgated, approved or entered, relating to dispensing, storing or distributing prescription medicines or products, including laws, rules or regulations relating to the qualifications of Persons employed to do the same.

1.159         “Pharmacy Receivables” means as to each Borrower, all present and future rights of such Borrower to payment from a Third Party Payor arising from the sale of prescription drugs by such Borrower (it being understood that the portion of the purchase price for such prescription drugs payable by the purchaser of such prescription drugs or any Person other than a Third Party Payor shall not be deemed to be a Pharmacy Receivable).

1.160         “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which any Borrower or Guarantor sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a Multiemployer Plan has made contributions at any time during the immediately preceding six (6) plan years.

1.161         “Prescription Files” shall mean, as to each Borrower and Guarantor, all of such Borrower’s or Guarantor’s now owned or hereafter existing or acquired retail customer files, (a) including prescriptions for retail customers and other medical information related thereto, maintained by the retail pharmacies of Borrowers and Guarantors, wherever located, and (b) the pharmaceutical customer list owned and controlled by any Borrower or Guarantor relating to certain items and services, including, without limitation, any drug price data, drug eligibility data, clinical drug information and health information of a pharmaceutical customer that is not protected under Sections 1171 through 1179 of the Social Security Act or other applicable law.

1.162         “Pro Forma Basis” shall mean, for purposes of calculating retail sales in Section 10.1(i) for the immediately preceding fiscal year and for purposes of calculating revenues in Section 10.1(n) for the immediately preceding fiscal year, that pro forma effect will be given to the Nash-Finch Merger, any acquisition or investment permitted under Section 9.10(j) hereof and sales, transfers and other dispositions or discontinuance of any Subsidiary, line of business, division or store, in each case, that occurred during such immediately preceding fiscal year being used for such purpose as if such event occurred on the first day of such immediately preceding fiscal year.

1.163         “Pro Rata Share” shall mean:

(a)     with respect to a Tranche A Lender's obligation to make Tranche A Revolving Loans and to acquire interests in Swing Line Loans, Special Administrative Agent Advances and Letter of Credit Accommodations and receive payments of interest, fees, and principal with respect thereto, the fraction (expressed as a percentage) the numerator of which is such Tranche A Lender's Tranche A Commitment and the denominator of which is the aggregate amount of all of the Tranche A Commitments of the Tranche A Lenders, as adjusted from time to time in accordance with the provisions of Section 13.7 hereof; provided, that, if the Tranche A Commitments have been terminated, the numerator shall be the unpaid amount of such Tranche A Lender's Tranche A Revolving Loans and its interest in the Swing Line Loans, Special Administrative Agent Advances and Letter of Credit Accommodations and the denominator shall be the aggregate amount of all unpaid Tranche A Revolving Loans, Swing Line Loans, Special Administrative Agent Advances and Letter of Credit Accommodations;

(b)     with respect to a Tranche A-1 Lender's obligation to make Tranche A-1 Revolving Loans and receive payments of interest, fees, and principal with respect thereto, the fraction (expressed as a percentage) the numerator of which is such Tranche A-1 Lender's Tranche A-1 Commitment and the denominator of which is the aggregate amount of all of the Tranche A-1 Commitments of the Tranche A-1 Lenders, as adjusted from time to time in accordance with the provisions of Section 13.7 hereof;

(c)     with respect to a Tranche A-2 Lender's obligation to make Tranche A-2 Term Loans and receive payments of interest, fees, and principal with respect thereto, the fraction (expressed as a percentage) the numerator of which is such Tranche A-2 Lender's Tranche A-2 Commitment and the denominator of which is the aggregate amount of all of the Tranche A-2 Commitments of the Tranche A-2 Lenders, as adjusted from time to time in accordance with the provisions of Section 13.7 hereof;

(d)    with respect to all other matters (including, without limitation, the indemnification obligations arising under Section 11.5 hereof), at any time shall mean, as to any Lender, the fraction (expressed as a percentage) the numerator of which is such Lender’s aggregate Commitments and the denominator of which is the aggregate amount of all of the Commitments of Lenders, as adjusted from time to time in accordance with the provisions Section 13.7 hereof; provided, that, if the Commitments have been terminated, the numerator shall be the unpaid amount of such Lender’s Loans and its interest in the Swing Line Loans, Special Administrative Agent Advances and Letter of Credit Accommodations and the denominator shall be the aggregate amount of all unpaid Loans, Swing Line Loans, Special Administrative Agent Advances and Letter of Credit Accommodations.

1.164         “Provision for Taxes” shall mean an amount equal to all taxes imposed on or measured by net income, whether Federal, State, Provincial, county or local, and whether foreign or domestic, that are paid or payable by any Person in respect of any period in accordance with GAAP.

1.165         "Qualified Debt Agent" shall mean the entity acting in the capacity as agent or trustee, as applicable, with respect to a Qualified Debt Offering and any successor or replacement agent or trustee, as applicable, and their respective successors and assigns.

1.166         “Qualified Debt Intercreditor Agreement” shall mean, in form and substance reasonably satisfactory to Administrative Agent and the Required Lenders, the Intercreditor Agreement entered into on the date that Borrowers incur Indebtedness permitted to be incurred pursuant to Section 9.9(f) hereof, by and between Administrative Agent and each set of holders of such debt, as applicable (or their agent or trustee, as applicable), as acknowledged and agreed to by Borrowers and Guarantors, pursuant to which Administrative Agent shall subordinate its lien on the Qualified Debt Offering Priority Collateral (to no less than a second priority lien) and the holders of such debt (or their agent or trustee, as applicable) shall subordinate its lien on all Collateral other than the Qualified Debt Offering Priority Collateral, as the same be amended, modified, supplemented, extended, renewed, restated or replaced.

1.167         “Qualified Debt Offering" shall mean, at the option of the Borrowers, in each case, pursuant to and in accordance with the terms of Section 9.9(f) hereof, one or more (i) term loans made to the Borrowers or Guarantors after the Effective Date or (ii) senior notes issued by any Borrower or Guarantor after the Effective Date.

1.168         “Qualified Debt Offering Priority Collateral” shall mean, after the date that Borrowers or Guarantors have incurred Indebtedness pursuant to Section 9.9(f) hereof, collectively, that portion of the Collateral now owned or at any time hereafter acquired by any Borrower or Guarantor or in which any Borrower or Guarantor now has or at any time in the future may acquire any right, title or interest, consisting of

(a)     Equipment (other than Equipment that constitutes Eligible Equipment or Eligible Rolling Stock as of the date of the incurrence of such Indebtedness),

(b)     Real Property and fixtures (other than Real Property that constitutes Eligible Real Property as of the date of the incurrence of such Indebtedness),

(c)     Intellectual Property,

(d)    instruments, documents, investment property, letters of credit, supporting obligations and chattel paper, in each case, to the extent that any amounts payable under or in connection with any of the items or types of assets described in clauses (a) through (c) above are evidenced by the items described in this clause (d) and

(e)     all proceeds and products of any of the items or types of assets described in clauses (a) through (d) above.

1.169         “Real Property” shall mean all now owned and hereafter acquired real property of each Borrower and Guarantor, including leasehold interests, together with all buildings, structures, and other improvements located thereon and all licenses, easements and appurtenances relating thereto, wherever located, including the real property and related assets more particularly described in the Mortgages.

1.170         “Realty Reserves” shall mean such Reserves as the Administrative Agent from time to time determines in its Permitted Discretion as being appropriate to reflect the impediments to Administrative Agent’s ability to realize upon any Eligible Real Property.  Without limiting the generality of the foregoing, Realty Reserves may include (but are not limited to) (a) Environmental Compliance Reserves, (b) Reserves for (i) municipal taxes and assessments that may be required to be repaid in connection with any sale or other disposition of any of such Real Property, (ii) at any time, repairs required to maintain the Real Property at such time and/or to prepare it for a sale or other disposition, (iii) remediation of title defects, and (c) Reserves for Indebtedness secured by liens that are pari passu with, or have priority over, the lien of the Administrative Agent.

1.171         “Receivables” shall mean all of the following now owned or hereafter arising or acquired property of each Borrower and Guarantor: (a) all Accounts; (b) all interest, fees, late charges, penalties, collection fees and other amounts due or to become due or otherwise payable in connection with any Account; (c) all payment intangibles of such Borrower or Guarantor; (d)  letters of credit, indemnities, guarantees, security or other deposits and proceeds thereof issued payable to any Borrower or Guarantor or otherwise in favor of or delivered to any Borrower or Guarantor in connection with any Account; or (e) all other accounts, contract rights, chattel paper, instruments, notes, general intangibles and other forms of obligations owing to any Borrower or Guarantor, whether from the sale and lease of goods or other property, licensing of any property (including Intellectual Property or other general intangibles), rendition of services or from loans or advances by any Borrower or Guarantor or to or for the benefit of any third person (including loans or advances to any Affiliates or Subsidiaries of any Borrower or Guarantor) or otherwise associated with any Accounts, Inventory or general intangibles of any Borrower or Guarantor (including, without limitation, choses in action, causes of action, tax refunds, tax refund claims, any funds which may become payable to any Borrower or Guarantor in connection with the termination of any Plan or other employee benefit plan and any other amounts payable to any Borrower or Guarantor from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, casualty or any similar types of insurance and any proceeds thereof and proceeds of insurance covering the lives of employees on which any Borrower or Guarantor is a beneficiary).

1.172         “Records” shall mean, as to each Borrower and Guarantor, all of such Borrower’s and Guarantor’s present and future books of account of every kind or nature, purchase and sale agreements, invoices, ledger cards, bills of lading and other shipping evidence, statements, correspondence, memoranda, credit files and other data relating to the Collateral or any Account Debtor, together with the tapes, disks, diskettes and other data and software storage media and devices, file cabinets or containers in or on which the foregoing are stored (including any rights of any Borrower or Guarantor with respect to the foregoing maintained with or by any other person).

1.173         “Reference Bank” shall mean Wells Fargo Bank, National Association, or such other bank as Administrative Agent may from time to time designate.

1.174         “Refinancing Indebtedness” shall have meaning set forth in Section 9.9 hereof.

1.175         “Register” shall have the meaning set forth in Section 13.7 hereof.

1.176         “Required Lenders” shall mean, at any time, those Lenders whose Pro Rata Shares aggregate fifty-one (51%) percent or more of the aggregate of the Commitments of all Lenders, or if the Commitments shall have been terminated, Lenders to whom at least fifty-one (51%) percent of the then outstanding Obligations are owing; provided, that, (a) the Commitment of any Defaulting Lender shall be disregarded in the determination of the Required Lenders, (b) at any time that there are two (2) or more Lenders, “Required Lenders” must include at least two (2) Lenders (who are not Affiliates of one another), and (c) to the extent that the Pro Rata Shares of Wells and Bank of America aggregate fifty-one (51%) percent or more of the aggregate of the Commitments of all Lenders, “Required Lenders” must include at least three (3) Lenders (who are not Affiliates of one another).  For purposes of calculating Pro Rata Share, the Commitments of any Defaulting Lender in determining Required Lenders at any time shall be deemed to be zero.

1.177         “Required Tranche A Lenders” shall mean, at any time, those Tranche A Lenders whose Pro Rata Shares aggregate fifty-one (51%) percent or more of the aggregate of the Tranche A Commitments of all Tranche A Lenders, or if the Tranche A Commitments shall have been terminated, Tranche A Lenders to whom at least fifty-one (51%) percent of the then outstanding Obligations in respect of Tranche A Revolving Loans are owing; provided, that, (a) the Commitment of any Defaulting Lender shall be disregarded in the determination of the Required Tranche A Lenders, (b) at any time that there are two (2) or more Tranche A Lenders, “Required Tranche A Lenders” must include at least two (2) Tranche A Lenders (who are not Affiliates of one another), and (c) to the extent that the Pro Rata Shares of Wells and Bank of America aggregate fifty-one (51%) percent or more of the aggregate of the Tranche A Commitments of all Tranche A Lenders, “Required Tranche A Lenders” must include at least three (3) Tranche A Lenders (who are not Affiliates of one another).  For purposes of calculating Pro Rata Share, the Commitments of any Defaulting Lender in determining Required Tranche A Lenders at any time shall be deemed to be zero.

1.178         “Required Tranche A-1 Lenders” shall mean, at any time, those Tranche A-1 Lenders whose Pro Rata Shares aggregate fifty-one (51%) percent or more of the aggregate of the Tranche A-1 Commitments of all Tranche A-1 Lenders, or if the Tranche A-1 Commitments shall have been terminated, Tranche A-1 Lenders to whom at least fifty-one (51%) percent of the then outstanding Obligations in respect of Tranche A-1 Revolving Loans are owing; provided, that, (a) the Commitment of any Defaulting Lender shall be disregarded in the determination of the Required Tranche A-1 Lenders, and (b) at any time that there are two (2) or more Tranche A-1 Lenders, “Required Tranche A-1 Lenders” must include at least two (2) Tranche A-1 Lenders (who are not Affiliates of one another).  For purposes of calculating Pro Rata Share, the Commitments of any Defaulting Lender in determining Required Tranche A-1 Lenders at any time shall be deemed to be zero.

1.179         “Required Tranche A-2 Lenders” shall mean, at any time, those Tranche A-2 Lenders whose Pro Rata Shares aggregate fifty-one (51%) percent or more of the aggregate of the Tranche A-2 Commitments of all Tranche A-2 Lenders, or if the Tranche A-2 Commitments shall have been terminated, Tranche A-2 Lenders to whom at least fifty-one (51%) percent of the then outstanding Obligations in respect of Tranche A-2 Revolving Loans are owing; provided, that, (a) the Commitment of any Defaulting Lender shall be disregarded in the determination of the Required Tranche A-2 Lenders, and (b) at any time that there are two (2) or more Tranche A-2 Lenders, “Required Tranche A-2 Lenders” must include at least two (2) Tranche A-2 Lenders (who are not Affiliates of one another).  For purposes of calculating Pro Rata Share, the Commitments of any Defaulting Lender in determining Required Tranche A-2 Lenders at any time shall be deemed to be zero.

1.180         “Reserves” shall mean as of any date of determination, such amounts as Administrative Agent may from time to time establish and revise in its Permitted Discretion reducing the amount of Loans and Letter of Credit Accommodations which would otherwise be available to any Borrower under the lending formula(s) provided for herein: (a) to reflect events, conditions, contingencies or risks which adversely affect, or have a reasonable likelihood of adversely affecting (i) the assets or business of Borrowers, including the Collateral or its value or the amount that might be obtained upon the sale or other disposition or realization on such Collateral or (ii) the security interests and other rights of Administrative Agent or any Lender in the Collateral (including the enforceability, perfection and priority thereof) or (b) to reflect Administrative Agent’s good faith belief that any collateral report or financial information furnished by or on behalf of any Borrower or Obligor to Administrative Agent is or was incomplete, inaccurate or misleading in any material respect or (c) to reflect outstanding Letter of Credit Accommodations as provided in Section 2.4 hereof or (d) in respect of any state of facts which Administrative Agent determines in good faith constitutes a Default or an Event of Default.  Without limiting the generality of the foregoing, Reserves may, at Administrative Agent’s option in its Permitted Discretion, be established to reflect: (i) chargebacks with respect to Accounts, (ii) returns, discounts, claims, credits and allowances of any nature that are not paid pursuant to the reduction of Accounts, (iii) the sales, excise or similar taxes included in the amount of any Accounts reported to Administrative Agent, (iv) a change in the turnover, age or mix of the categories of Inventory or Rolling Stock that adversely affects the aggregate value of all Inventory or Rolling Stock, as the case may be, (v) variances between the perpetual inventory records of Borrowers (to the extent such perpetual inventory records are maintained) and the results of the test counts of the Inventory that is subject to such perpetual inventory records conducted by Administrative Agent with respect thereto in excess of the percentage acceptable to Administrative Agent, (vi) variances between the inventory records of Borrowers and Guarantors and the results of test counts or physical counts of inventory with respect thereto, (vii) variances between the stock ledger inventory report for non-perishable items in the Retail Division and the general ledger with respect thereto; (viii) amounts owing by Borrowers to Credit Card Issuers or Credit Card Processors in connection with the Credit Card Agreements, (ix) amounts due or to become due in respect of sales, excise, use and/or withholding taxes, (x) liabilities of any Borrower or Guarantor that are entitled to receive the benefit of a security interest or trust pursuant to the PACA, the PSA or any other similar state law (provided, that, as of the Effective Date, Borrowers represent that there are no such liabilities under the PSA since Borrowers have written agreements providing for the extension of credit to them for all purchases of meat, meat products and livestock products by Borrowers), (xi) inventory shrinkage, (xii) the aggregate amount of merchandise gift certificates and coupons, (xiii) any rental payments, service charges or other amounts to become due to lessors of real property to the extent Inventory, Equipment, Rolling Stock or Records are located in or on such property or such Records are needed to monitor or otherwise deal with the Collateral (except for rents and amounts due for the lease of Real Property by Borrowers where Administrative Agent has received a Collateral Access Agreement in a form acceptable to Administrative Agent, provided, that, in the event that Administrative Agent has not received a Collateral Access Agreement or has received a Collateral Access Agreement that does not have terms that are acceptable to Administrative Agent for any retail store location that is leased by a Borrower, the Reserves established in respect of such location pursuant to this clause (xiii) shall not exceed at any time the lesser of  (A) the aggregate of amounts payable to the owners and lessors of such location for the next two (2) months from any such time and including amounts if any, then outstanding and unpaid owed by a Borrower to such owners and lessors or (B) the value of the Eligible Equipment, Eligible Inventory and Eligible Rolling Stock at such location to the extent included in the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base or the Tranche A-2 Borrowing Base, except that such limitation on the amount of the Reserves shall not apply at any time that a Default or Event of Default shall exist or have occurred and be continuing, or a notice of any default or event of default under the lease with respect to such location has been received by or on behalf of any Borrower or Guarantor (except  where the existence of the default specified in such notice is being disputed in good faith by such Borrower or Guarantor provided that such Borrower or Guarantor is continuing to pay rent and all other amounts payable under the lease with respect to such premises or if not, then is paying such rent and other amounts into escrow so that such funds will be available to the lessor in the event that such Borrower or Guarantor does not succeed in such dispute) or a Borrower has granted to the owner and lessor a security interest or lien upon any assets of such Borrower, (xiv) reductions in the number of repeat prescriptions, the average volume of prescriptions being filled, or the change in the mix of the types of payors with respect to sales of prescriptions, or any other changes to the factors identified in any appraisal that adversely affect the amount that may be recovered by Administrative Agent from the sale or other disposition of the Prescription Files (provided, that, Borrowers may at any time and from time to time obtain appraisals that satisfy the requirements of Administrative Agent provided for herein with respect to the Prescription Files, and to the extent that the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base or theTranche A-2 Borrowing Base has been adjusted to reflect the then current value of the Eligible Prescription Files based on the results of such appraisal, such Reserves shall not be established), (xv) any statutory or regulatory changes after the Effective Date, or as to Ohio and Michigan laws are not disclosed in the opinions of counsel to Borrowers addressed and delivered to Administrative Agent on the Effective Date, that adversely affect the transferability of the Prescription Files, (xvi) the amount, at any time, by which the Tranche A-2 Term Loans exceed the Tranche A-2 Borrowing Base then in effect, (xvii) the Tax Stamps Reserve, (xviii) customs duties and other costs to release Inventory which is being imported into the United States, (xix) Customer Credit Liabilities, and (xx) Realty Reserves. 

To the extent that such Reserve is in respect of amounts that may be payable to third parties, the Administrative Agent may, at its option, but without duplication, deduct such Reserve from (A) the Tranche A Maximum Credit at any time that the Tranche A Maximum Credit is less than the amount of the Tranche A Borrowing Base, (B) the Tranche A-1 Maximum Credit at any time that the Tranche A-1 Maximum Credit is less than the amount of the Tranche A-1 Borrowing Base or (C) the Tranche A-2 Maximum Credit at any time that the Tranche A-2 Maximum Credit is less than the amount of the Tranche A-2 Borrowing Base.  To the extent Administrative Agent may revise the lending formulas used to determine the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base or the Tranche A-2 Borrowing Base or establish new criteria or revise existing criteria for Eligible Accounts or Eligible Inventory so as to address any circumstances, condition, event or contingency in a manner satisfactory to Administrative Agent, Administrative Agent shall not establish a Reserve for the same purpose.  The amount of any Reserve established by Administrative Agent shall have a reasonable relationship to the event, condition or other matter which is the basis for such reserve as determined by Administrative Agent in good faith. 

1.181         “Retail Division” shall mean the operations of Family Fare, Prevo, MSFC, Seaway, Custer, Pharm, Gruber RE, Spartan Fuel, Nash-Finch,  Super Food, U Save and Erickson’s (together with their respective successors and assigns) consisting of ownership by such Borrowers and their Subsidiaries of retail supermarkets, pharmacies, fuel centers and convenience stores, together with all related retail operations by them.

1.182         “Revolving Loans” shall mean, collectively, the Tranche A Revolving Loans and the Tranche A-1 Revolving Loans.

1.183         “Rolling Stock” shall mean, as to each Borrower, all of such Borrower’s trucks, trailers, tractors and intermodal units for use in connection therewith, wherever located.

1.184         “Sale and Lease-Back Transaction” shall mean the sale by any Borrower or Guarantor of real property pursuant to any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any real property, whether now owned or hereafter acquired, and thereafter rent or lease such real property that it intends to use for substantially the same purpose or purposes as the real property being sold or transferred.

1.185         “Sanctioned Entity” shall mean (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) a Person resident in or determined to be resident in a country, in each case, that is subject to a country sanctions program administered and enforced by OFAC.

1.186         “Sanctioned Person” shall mean a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time.

1.187         “Secured Parties” shall mean, collectively, (a) Administrative Agent, (b) Issuing Bank, (c) Lenders and (d) Bank Product Providers; provided, that, as to any Bank Product Provider, only to the extent of the Obligations owing to such Bank Product Provider.

1.188         “Senior Note Indenture” shall mean the Indenture, dated December 6, 2012, by and between Parent, as issuer, and The Bank of New York Trust Company, N.A., as trustee, with respect to the Senior Notes, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced from time to time.

1.189         “Senior Notes” shall mean, collectively, the 6.625% Senior Notes Due 2016 issued by Parent in the original aggregate principal amount not to exceed $50,000,000 pursuant to the Senior Note Indenture, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced from time to time.

1.190         “Senior Notes Trustee” shall mean The Bank of New York Trust Company, N.A., as trustee under the Senior Notes, and its successors and assigns, and any replacement or successor trustee thereunder.

1.191         “Social Security Act” shall mean the Social Security Act, 92 U.S.C. Section 1396, et seq, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all rules, regulations and interpretations thereunder or related thereto.

1.192         “Solvent” shall mean, at any time with respect to any Person, that at such time such Person (a) is able to pay its debts as they mature and has (and has a reasonable basis to believe it will continue to have) sufficient capital (and not unreasonably small capital) to carry on its business consistent with its practices as of the Effective Date, and (b) the assets and properties of such Person at a fair valuation (and including as assets for this purpose at a fair valuation all rights of subrogation, contribution or indemnification arising pursuant to any guarantees given by such Person) are greater than the Indebtedness of such Person, and including subordinated and contingent liabilities computed at the amount which, such person has a reasonable basis to believe, represents an amount which can reasonably be expected to become an actual or matured liability (and including as to contingent liabilities arising pursuant to any guarantee the face amount of such liability as reduced to reflect the probability of it becoming a matured liability).

1.193         “Special Administrative Agent Advances” shall have the meaning set forth in Section 12.11 hereof.

1.194         “Specified Representations” shall mean the representations and warranties set forth in Sections 8.1, the first sentence of 8.4, the second sentence of 8.7(a), 8.12(d), 8.24, 8.29, 8.31 and 8.32 herein.

1.195         “SSD” shall mean SS Delaware, Inc., a Delaware corporation, and its successors and assigns.

1.196         “Store Accounts” shall have the meaning set forth in Section 6.3 hereof.

1.197         “Subsidiary” or “subsidiary” shall mean, with respect to any Person, any corporation, limited liability company, limited liability partnership or other limited or general partnership, trust, association or other business entity of which an aggregate of at least a majority of the outstanding Capital Stock or other interests entitled to vote in the election of the board of directors of such corporation (irrespective of whether, at the time, Capital Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency), managers, trustees or other controlling persons, or an equivalent controlling interest therein, of such Person is, at the time, directly or indirectly, owned by such Person and/or one or more subsidiaries of such Person.

1.198         “Supermajority Lenders” shall mean, at any time, those Lenders whose Pro Rata Shares aggregate sixty-six and two-thirds (66 2/3%) percent or more of the aggregate of the Commitments of all Lenders, or if the Commitments shall have been terminated, Lenders to whom at least sixty-six and two-thirds (66 2/3%) percent of the then outstanding Obligations are owing; provided, that, (a) the Commitment of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders, and (b) at any time that there are two (2) or more Lenders, “Supermajority Lenders” must include at least two (2) Lenders (who are not Affiliates of one another).  For purposes of calculating Pro Rata Share, the Commitments of any Defaulting Lender in determining Supermajority Lenders at any time shall be deemed to be zero.

1.199         “Swing Line Lender” shall mean Wells Fargo Capital Finance, LLC, in its capacity as the lender of Swing Line Loans, and its successors and assigns.

1.200         “Swing Line Loans” shall mean loans now or hereafter made by Swing Line Lender on a revolving basis pursuant to the Credit Facility (involving advances, repayments and readvances) as set forth in Section 2.2 hereof.

1.201         “Swing Line Loan Limit” shall mean $100,000,000.

1.202         “Tax Stamps” shall mean all tax stamps, excise tax stamps, adhesive stamps, meter stamps and similar stamps, which in each case evidence the valid and effective payment of cigarette taxes to applicable Governmental Authorities.

1.203         “Tax Stamps Reserve” shall mean, at any given time, with respect to any Eligible Unaffixed Tax Stamp Inventory, such reserves as the Administrative Agent from time to time determines in its Permitted Discretion as being appropriate with respect to the sum of the “net stamp tax obligations” in each State in which any Borrower purchases Tax Stamps, wherein the “net stamp tax obligations” for each State are equal to the aggregate obligations and/or liabilities owing to any Governmental Authority in such State for purchases of Tax Stamps (including any checks or instruments of payment issued by or on behalf of any Borrower which are held by any taxing authority in such State and not yet submitted for presentment and collection), and the aggregate obligations and/or liabilities owing to any Governmental Authority in such State based on an audit of a Borrowers’ monthly Tax Stamp report delivered to such Governmental Authority in such State but excluding all such obligations and/or liabilities owing to any Governmental Authority in such States as determined by Administrative Agent in its Permitted Discretion; provided, that, the amount of any such Reserve shall be reduced by the amount payable under any surety bond issued to or for the benefit of any Governmental Authority of a State so long as Administrative Agent shall have received an opinion letter, in form and substance reasonably satisfactory to the Administrative Agent, from counsel licensed in such State opining that amounts owing to such State would not be entitled to payment from any assets of the Borrowers (or held by them) prior to the Obligations, whether as a result of amounts collected by any Borrower in respect of cigarette taxes being trust funds or any Borrower acting as agent for such State for purposes of the collection of such cigarette taxes, as an offset against Tax Stamps held or used by such Borrower or otherwise.

1.204         “Third Party Payor” shall mean any Person, such as, a Fiscal Intermediary, Blue Cross/Blue Shield, or private health insurance company, which is obligated to reimburse or otherwise make payments to health care providers who provide medical care or medical assistance or other goods or services for eligible patients under Medicare, Medicaid or any private insurance contract.

1.205         “Total Borrowing Base” shall mean, the sum of the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base and the Tranche A-2 Borrowing Base.

1.206         “Total Funded Indebtedness” shall mean, as of any date of determination, with respect to Parent and its Subsidiaries (determined on a consolidated basis), without duplication, any liability, whether or not contingent, (a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments (including, but not limited to, mortgages); (b) representing the balance deferred and unpaid of the purchase price of any property or services (other than an account payable to a trade creditor (whether or not an Affiliate) incurred in the ordinary course of business of such Person and payable in accordance with customary trade practices, but including, without limitation, all earn-outs and similar deferred payment obligations); (c) all obligations as lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital Leases; (d) all reimbursement obligations and other liabilities of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker’s acceptances, bank guaranties, drafts or similar documents or instruments issued for such Person’s account; (e) the principal and interest portions of all rental obligations of such Person under any synthetic lease or similar off-balance sheet financing where such transaction is considered to be borrowed money for tax purposes but is classified as an operating lease in accordance with GAAP, (f) in respect of letters of credit issued on behalf of the Borrowers and Guarantors (and/or in connection with the Borrowers and Guarantors have reimbursement obligations) and (g) all obligations, liabilities and indebtedness of such Person (marked to market) arising under swap agreements, cap agreements, hedging agreements, collar agreements and other agreements or arrangements designed to protect such person against fluctuations in interest rates or currency or commodity values.

1.207         “Tranche A Borrowing Base” shall mean, at any time, the amount equal to:

(a)       eighty-five (85%) percent multiplied by the net amount of Eligible Accounts (other than those arising from Pharmacy Receivables, Credit Card Receivables and Military Receivables); plus

(b)       ninety (90%) percent multiplied by the net amount of Eligible Accounts arising from Pharmacy Receivables; plus

(c)       ninety (90%) percent multiplied by the net amount of Eligible Credit Card Receivables; plus

(d)      eighty-five (85%) percent multiplied by the net amount of (after deducting, without duplication, the Military Receivables Deduction Amount) Eligible Military Receivables; plus

(e)       ninety (90%) percent of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Retail Division multiplied by the Value of such Eligible Inventory; plus

(f)        ninety (90%) percent of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Distribution Division (including, for this purpose, Inventory which gives rise to Military Receivables) multiplied by the Value of such Eligible Inventory; plus

(g)       ninety (90%) percent of the Net Recovery Percentage of Eligible In-Transit Inventory multiplied by the Value of such Eligible In-Transit Inventory; plus

(h)       ninety (90%) percent of Eligible Unaffixed Tax Stamp Inventory; plus

(i)         the Tranche A Prescription File Availability; plus

(j)         the Tranche A Real Estate Availability; plus

(k)       the Tranche A Equipment Availability; plus

(l)         the Tranche A Rolling Stock Availability; plus

(m)     ninety-eight (98%) percent of Eligible Cash and Cash Equivalents; minus

(n)     Reserves. 

The amounts of Eligible Inventory of any Borrower shall, at Administrative Agent’s option, be determined based on the lesser of the amount of Inventory set forth in the general ledger of such Borrower, as reconciled, or the perpetual inventory record or stock ledger record, as applicable, maintained by such Borrower.

1.208         “Tranche A Commitment” shall mean, at any time, as to each Tranche A Lender, the principal amount set forth next to such Lender’s name on Exhibit F hereto designated as the Tranche A Commitment of such Lender or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender hereunder in accordance with the provisions of Section 13.7 hereof, as the same may be adjusted from time to time in accordance with the terms hereof; sometimes being collectively referred to herein as “Tranche A Commitments”.

1.209         “Tranche A Equipment Availability” shall mean eighty-five (85%) percent of the forced liquidation value of Eligible Equipment as set forth in the appraisal of such Equipment received by Administrative Agent in accordance with Section 7.4 hereof after the Effective Date, provided, that, (a) until Administrative Agent has received the initial appraisal of the Eligible Equipment that satisfies the requirements of Section 7.4 hereof, there shall not be any Tranche A Equipment Availability, (b) the Tranche A Equipment Availability shall be established five (5) Business Days after the receipt by Administrative Agent of the final written report of such appraisal in the amount determined based on such appraisal, and (c) commencing on the first day of the next calendar month after the Tranche A Equipment Availablity is established, and as of the first day of each calendar month thereafter, the percentage set forth above shall be reduced by an amount equal to such initial percentage divided by sixty (60).

1.210         “Tranche A Lenders” shall mean, collectively, the Lenders having a Tranche A Commitment or all or a portion of the Tranche A Loans owing to it; sometimes being referred to herein individually as a “Tranche A Lender”.

1.211         “Tranche A Maximum Credit” shall mean the amount of $900,000,000 (subject to adjustment as provided in Section 2.6 hereof).

1.212         “Tranche A Prescription File Availability” shall mean ninety (90%) percent of the “net orderly liquidation value” of the Eligible Prescription Files based on the most recent acceptable appraisal thereof received by Administrative Agent in accordance with Section 7.5 hereof using the average of the average recovery under each of the percent of script sales method, the dollars per average number of scripts filled per week method and the percent of past year script margin method (or such other methodology or methodologies as may be acceptable to Administrative Agent).

1.213         “Tranche A Real Estate Availability” shall mean the lesser of (a) seventy-five (75%) percent of the appraised fair market value of the Eligible Real Property as set forth in the appraisal of such Real Property received by Administrative Agent in accordance with Section 7.4 hereof prior to the Effective Date, which amount, as of the Effective Date, is $255,090,000, and which amount shall be no greater than $258,690,000 at any time thereafter, provided, that, commencing on the first day of the next calendar quarter after the Effective Date, such percentage shall be reduced to seventy-four (74%) percent and by an additional one hundred (100) basis points as of the first day of each calendar quarter thereafter until it is sixty (60%) percent, and (b) an amount equal to thirty (30%) percent of the Tranche A Borrowing Base as then in effect.

1.214         “Tranche A Revolving Loans” shall mean the loans now or hereafter made by or on behalf of any Tranche A Lender or by Administrative Agent for the account of any Tranche A Lender on a revolving basis pursuant to the Credit Facility (involving advances, repayments and readvances) as set forth in Section 2.1(a)(i) hereof.  Swing Line Loans shall be considered Tranche A Revolving Loans, except as otherwise provided herein.

1.215         “Tranche A Rolling Stock Availability” shall mean eighty-five (85%) percent of the net orderly liquidation value of the Eligible Rolling Stock as set forth in the most recent acceptable appraisal (or acceptable updates of existing appraisals) of such Rolling Stock received by Administrative Agent in accordance with Section 7.6 hereof, provided, that commencing on the first day of the next calendar quarter after the Effective Date, such percentage shall be reduced to eighty-two (82%) percent and by an additional 300 basis points as of the first day of each calendar quarter thereafter.

1.216         “Tranche A-1 Borrowing Base” shall mean, at any time, the amount equal to:

(a)       five (5%) percent multiplied by the net amount of Eligible Accounts (other than those arising from Pharmacy Receivables, Credit Card Receivables and Military Receivables); plus

(b)       five (5%) percent multiplied by the net amount of Eligible Accounts arising from Pharmacy Receivables; plus

(c)       five (5%) percent multiplied by the net amount of Eligible Credit Card Receivables; plus

(d)      five (5%) percent multiplied by the net amount of (after deducting, without duplication, the Military Receivables Deduction Amount) Eligible Military Receivables; plus

(e)       five (5%) percent multiplied by the net amount of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Retail Division multiplied by the Value of such Eligible Inventory; plus

(f)        five (5%) percent multiplied by the net amount of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Distribution Division (including, for this purpose, Inventory which gives rise to Military Receivables) multiplied by the Value of such Eligible Inventory; plus

(g)       five (5%) percent of the Net Recovery Percentage of Eligible In-Transit Inventory multiplied by the Value of such Eligible In-Transit Inventory; plus

(h)       five (5%) percent of Eligible Unaffixed Tax Stamp Inventory; plus

(i)         the Tranche A-1 Prescription File Availability; minus

(j)       Reserves (without duplication of any Reserves established in respect of the Tranche A Borrowing Base or the Tranche A-2 Borrowing Base).

The amounts of Eligible Inventory of any Borrower shall, at Administrative Agent’s option, be determined based on the lesser of the amount of Inventory set forth in the general ledger of such Borrower, as reconciled, or the perpetual inventory record or stock ledger record, as applicable, maintained by such Borrower.

1.217         “Tranche A-1 Commitment” shall mean, at any time, as to each Tranche A-1 Lender, the principal amount set forth next to such Lender’s name on Exhibit F hereto designated as the Tranche A-1 Commitment of such Lender or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender hereunder in accordance with the provisions of Section 13.7 hereof, as the same may be adjusted from time to time in accordance with the terms hereof; sometimes being collectively referred to herein as “Tranche A-1 Commitments”.

1.218         “Tranche A-1 Lenders” shall mean, collectively, the Lenders having a Tranche A-1 Commitment or all or a portion of the Tranche A-1 Loans owing to it; sometimes being referred to herein individually as a “Tranche A-1 Lender”.

1.219         “Tranche A-1 Maximum Credit” shall mean the amount of $40,000,000.

1.220         “Tranche A-1 Prescription File Availability” shall mean five (5%) percent of the “net orderly liquidation value” of the Eligible Prescription Files based on the most recent acceptable appraisal thereof received by Administrative Agent in accordance with Section 7.5 hereof using the average of the average recovery under each of the percent of script sales method, the dollars per average number of scripts filled per week method and the percent of past year script margin method (or such other methodology or methodologies as may be acceptable to Administrative Agent).

1.221         “Tranche A-1 Revolving Loans” shall mean the loans now or hereafter made by or on behalf of any Tranche A-1 Lender or by Administrative Agent for the account of any Tranche A-1 Lender on a revolving basis pursuant to the Credit Facility (involving advances, repayments and readvances) as set forth in Section 2.1(a)(ii) hereof.

1.222         “Tranche A-2 Borrowing Base” shall mean, at any time, the amount equal to:

(a)       five (5%) percent multiplied by the net amount of Eligible Accounts (other than those arising from Pharmacy Receivables, Credit Card Receivables and Military Receivables); plus

(b)       five (5%) percent multiplied by the net amount of Eligible Accounts arising from Pharmacy Receivables; plus

(c)       five (5%) percent multiplied by the net amount of Eligible Credit Card Receivables; plus

(d)      five (5%) percent multiplied by the net amount of (after deducting, without duplication, the Military Receivables Deduction Amount) Eligible Military Receivables; plus

(e)       five (5%) percent of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Retail Division multiplied by the Value of such Eligible Inventory; plus

(f)        five (5%) percent of the Net Recovery Percentage for the Eligible Inventory (other than Eligible Unaffixed Tax Stamp Inventory) of the Distribution Division (including, for this purpose, Inventory which gives rise to Military Receivables) multiplied by the Value of such Eligible Inventory; plus

(g)       five (5%) percent of the Net Recovery Percentage of Eligible In-Transit Inventory multiplied by the Value of such Eligible In-Transit Inventory; plus

(h)       five (5%) percent of Eligible Unaffixed Tax Stamp Inventory; plus

(i)         the Tranche A-2 Prescription File Availability; plus

(j)         the Tranche A-2 Real Estate Availability; minus

(k)     Reserves (without duplication of any Reserves established in respect of the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base).

The amounts of Eligible Inventory of any Borrower shall, at Administrative Agent’s option, be determined based on the lesser of the amount of Inventory set forth in the general ledger of such Borrower, as reconciled, or the perpetual inventory record or stock ledger record, as applicable, maintained by such Borrower.

1.223         “Tranche A-2 Commitment” shall mean, at any time, as to each Tranche A-2 Lender, the principal amount set forth next to such Lender’s name on Exhibit F hereto designated as the Tranche A-2 Commitment of such Lender or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender hereunder in accordance with the provisions of Section 13.7 hereof, as the same may be adjusted from time to time in accordance with the terms hereof; sometimes being collectively referred to herein as “Tranche A-2 Commitments”.

1.224         “Tranche A-2 Lenders” shall mean, collectively, the Lenders having a Tranche A-2 Commitment or all or a portion of the Tranche A-2 Term Loans owing to it; sometimes being referred to herein individually as a “Tranche A-2 Lender”.

1.225         “Tranche A-2 Maximum Credit” shall mean the amount of $60,000,000, as the same shall be reduced from time to time by payments required in respect of Tranche A-2 Term Loans as set forth in Section 2.3 hereof.

1.226         “Tranche A-2 Prescription File Availability” shall mean five (5%) percent of the “net orderly liquidation value” of the Eligible Prescription Files based on the most recent acceptable appraisal thereof received by Administrative Agent in accordance with Section 7.5 hereof using the average of the average recovery under each of the percent of script sales method, the dollars per average number of scripts filled per week method and the percent of past year script margin method (or such other methodology or methodologies as may be acceptable to Administrative Agent).

1.227         “Tranche A-2 Real Estate Availability” shall mean the lesser of (a) seven and one-half (7.5%) percent of the appraised fair market value of the Eligible Real Property as set forth in the appraisal of such Real Property received by Administrative Agent in accordance with Section 7.4 hereof prior to the Effective Date, which amount, as of the Effective Date, is $25,509,000, and (b) $25,000,000.

1.228         “Tranche A-2 Term Loans” shall mean, collectively, the term loans made by or on behalf of Tranche A-2 Lenders, jointly and severally, as provided for in Section 2.3 hereof; sometimes being referred to herein individually as a “Tranche A-2 Term Loan”.

1.229         “UCC” shall mean the Uniform Commercial Code as in effect in the State of Illinois, and any successor statute, as in effect from time to time (except that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of Illinois on the Effective Date shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as Administrative Agent may otherwise determine).

1.230         “Value” shall mean, as determined by Administrative Agent in good faith, with respect to Inventory, the lower of (A) cost computed on a first-in first-out basis in accordance with GAAP or (b) market value, provided, that, for purposes of the calculation of the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base and the Tranche A-2 Borrowing Base, (i) the Value of the Inventory shall not include:  (A) the portion of the value of Inventory equal to the profit earned by any Affiliate on the sale thereof to any Borrower (other than the profit of the Distribution Division for sales of Inventory to the Retail Division in the ordinary course of business consistent with current practices and for sales at prices no more than the Retail Division could purchase such Inventory from a person that is not an Affiliate), (B) the amount of cigarette taxes that are capitalized in inventory, or (C)  write-ups or write-downs in value with respect to currency exchange rates and (ii) notwithstanding anything to the contrary contained herein, the cost of the Inventory shall be computed in the same manner and consistent with the most recent appraisal of the Inventory received and accepted by Administrative Agent prior to the Effective Date, if any (except to the extent that the method of calculation of the cost may be affected by the establishment of a reliable, consistent and accurate perpetual inventory system at the Retail Division for pharmacy Inventory or non-perishable Inventory.

1.231         “Voting Stock” shall mean with respect to any Person, (a) one (1) or more classes of Capital Stock of such Person having general voting powers to elect at least a majority of the board of directors, managers or trustees of such Person, irrespective of whether at the time Capital Stock of any other class or classes have or might have voting power by reason of the happening of any contingency, and (b) any Capital Stock of such Person convertible or exchangeable without restriction at the option of the holder thereof into Capital Stock of such Person described in clause (a) of this definition.

1.232         “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Indebtedness into (b) the total of the product obtained by multiplying (A) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (B) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.

1.233         “Wells” shall mean Wells Fargo Capital Finance, LLC, a national banking association, in its individual capacity, and its successors and assigns.

(a)     Subject to and upon the terms and conditions contained herein:

(i)   each Tranche A Lender severally (and not jointly) agrees to make its Pro Rata Share of Tranche A Revolving Loans to Borrowers from time to time in amounts requested by a Borrower (or Lead Borrower on behalf of Borrowers) up to the aggregate amount outstanding at any time equal to the Tranche A Commitment of such Lender, provided, that, after giving effect to any such Tranche A Revolving Loan, the principal amount of the Tranche A Revolving Loans, the Swing Line Loans and Letter of Credit Accommodations outstanding with respect to all Borrowers shall not exceed the lesser of (A) the Tranche A Borrowing Base at such time or (B) the Tranche A Maximum Credit at such time; and

(ii)   each Tranche A-1 Lender severally (and not jointly) agrees to make its Pro Rata Share of Tranche A-1 Revolving Loans to Borrowers from time to time in amounts requested by a Borrower (or Lead Borrower on behalf of Borrowers) up to the aggregate amount outstanding at any time equal to the Tranche A-1 Commitment of such Lender, provided, that, after giving effect to any such Tranche A-1 Revolving Loan, the principal amount of the Tranche A-1 Revolving Loans outstanding with respect to all Borrowers shall not exceed the lesser of (A) the Tranche A-1 Borrowing Base at such time or (B) the Tranche A-1 Maximum Credit.

(b)     Except in Administrative Agent’s discretion, with the consent of all Lenders, or as otherwise provided herein, (i) the aggregate amount of the Loans (including Swing Line Loans) and the Letter of Credit Accommodations outstanding at any time shall not exceed the Maximum Credit, (ii) the aggregate amount of the Loans (including Swing Line Loans) and Letter of Credit Accommodations outstanding at any time shall not exceed the Total Borrowing Base, (iii) the aggregate amount of the Tranche A Loans, the Swing Line Loans and the Letter of Credit Accommodations outstanding at any time shall not exceed the lesser of the Tranche A Maximum Credit or the Tranche A Borrowing Base; and (iv) the aggregate amount of the Tranche A-1 Revolving Loans outstanding at any time shall not exceed the lesser of the Tranche A-1 Maximum Credit or the Tranche A-1 Borrowing Base.  The aggregate amount of the Loans (including Swing Line Loans) and the Letter of Credit Accommodations outstanding at any time shall 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.

(c)     On the terms and subject to the conditions hereof, each Borrower (or Lead Borrower on behalf of Borrowers) may from time to time borrow, prepay and reborrow Revolving Loans and Swing Line Loans.  No Tranche A Lender shall be required to make any Tranche A Revolving Loan, if, after giving effect thereto the aggregate outstanding principal amount of all Tranche A Revolving Loans of such Lender, together with such Lender’s Pro Rata Share of the aggregate amount of all Loans, Swing Line Loans and Letter of Credit Obligations, would exceed such Lender’s Tranche A Commitment.  No Tranche A-1 Lender shall be required to make any Tranche A-1 Revolving Loan, if, after giving effect thereto the aggregate outstanding principal amount of all Tranche A-1 Revolving Loans of such Lender would exceed such Lender’s Tranche A-1 Commitment. 

(d)    The first Revolving Loans made shall be Tranche A-1 Loans up to the amount equal to the lesser of the Tranche A-1 Borrowing Base or the Tranche A-1 Maximum Credit.  Notwithstanding anything to the contrary contained herein, other than Swing Line Loans or Letter of Credit Accommodations, Borrowers shall not request any Tranche A Revolving Loans, and the Tranche A Lenders shall not be required to make any Tranche A Revolving Loans, unless and until the outstanding principal amount of the Tranche A-1 Revolving Loans at such time are equal to the lesser of the Tranche A-1 Borrowing Base or the Tranche A-1 Maximum Credit.  In the event that at any time the outstanding principal amount of the Tranche A-1 Revolving Loans shall be less than the amount equal to the lesser of the Tranche A-1 Borrowing Base or the Tranche A-1 Maximum Credit, the first Revolving Loans requested by a Borrower (or Lead Borrower on behalf of a Borrower) shall be deemed to be Tranche A-1 Loans until such time as the outstanding principal amount of the Tranche A-1 Loans are equal to the lesser of the Tranche A-1 Borrowing Base or the Tranche A-1 Maximum Credit.  Tranche A-1 Revolving Loans shall be solely Revolving Loans and all Letter of Credit Accommodations and Swing Line Loans shall be issued under the Tranche A Commitments and, with respect to Letter of Credit Accommodations, reserved against the Tranche A Borrowing Base as provided for in Section 2.4(d) hereof.

(a)     Subject to the terms and conditions contained herein, the Swing Line Lender agrees that it will make Swing Line Loans to each Borrower from time to time in amounts requested by such Borrower (or Lead Borrower on behalf of such Borrower) up to the aggregate amount outstanding equal to the Swing Line Loan Limit; provided, that, after giving effect to any such Swing Line Loan, the aggregate principal amount of the Tranche A Revolving Loans, Swing Line Loans and Letter of Credit Accommodations outstanding shall not exceed the lesser of (i) the Tranche A Borrowing Base at such time, or (ii) the Tranche A Maximum Credit at such time.  Subject to the terms and conditions hereof, each Borrower (or Administrative Borrower on behalf of Borrowers) may from time to time borrow, prepay and reborrow Swing Line Loans.  Swing Line Lender shall not be required to make Swing Line Loans, if, after giving effect thereto, the aggregate outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan Limit.  Each Swing Line Loan shall be subject to all of the terms and conditions applicable to other Base Rate Loans funded by the Lenders constituting Revolving Loans, except that all payments thereon shall be payable to the Swing Line Lender solely for its own account.  All Revolving Loans and Swing Line Loans shall be subject to the settlement among Lenders provided for in Section 6.10 hereof.

(b)     Upon the making of a Swing Line Loan, without further action by any party hereto, each Tranche A Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Swing Line Lender, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Swing Line Loan.  To the extent that there is no settlement in accordance with Section 6.10 below, the Swing Line Lender may at any time, require the Tranche A Lenders to fund their participations.  From and after the date, if any, on which any Tranche A Lender has funded its participation in any Swing Line Loan, Administrative Agent shall promptly distribute to such Lender, not less than weekly, such Lender’s Pro Rata Share of all payments of principal and interest received by Administrative Agent in respect of such Swing Line Loan.

(a)     Subject to and upon the terms and conditions contained herein, each Tranche A-2 Lender severally (and not jointly) agrees to make Tranche A-2 Term Loans to Lead Borrower, on behalf of the Borrowers, on the Effective Date in the aggregate principal amount of $60,000,000.

(b)     The principal amount of each of the Tranche A-2 Term Loans shall be repaid in consecutive equal quarterly installments (or earlier as provided herein) of principal in the amount of $2,500,000 commencing on January 1, 2014 and on the first day of each calendar quarter thereafter and the last installment shall be in the amount of the then entire unpaid balance of such Tranche A-2 Term Loans due upon the termination of the Loan Agreement and the other Financing Agreements.  The Tranche A-2 Term Loans are (i) to be repaid, together with interest and other amounts, in accordance with this Agreement and the other Financing Agreements and (ii) secured by all of the Collateral.  Except for the making of the Tranche A-2 Term Loans as set forth in this Section 2.3, Borrowers shall have no right to request and Tranche A-2 Lenders shall have no obligation to make any additional Loans or advances to Borrowers under this Section 2.3 and any payments of the Tranche A-2 Term Loan shall not be subject to any readvance or reborrowing by Borrowers.

(c)     In the event that, at any time, the amount of the outstanding Tranche A-2 Term Loans exceeds the lesser of the Tranche A-2 Borrowing Base then in effect or the Tranche A-2 Maximum Credit, unless a Reserve in such amount has been established as provided in clause (xvi) of the definition of the term Reserves (and after giving effect to such Reserve there is Excess Availability), Borrowers shall, upon demand by Administrative Agent at its option or at the direction of the Required Tranche A-2 Lenders, which may be made at any time or from time to time, immediately repay to Administrative Agent the entire amount of any such excess(es) for which payment is demanded (and including breakage or similar costs, if any).

(a)     Subject to and upon the terms and conditions contained herein, at the request of a Borrower, Administrative Agent agrees, for the ratable risk of each Tranche A Lender according to its Pro Rata Share, to provide or arrange for Letter of Credit Accommodations for the account of such Borrower containing terms and conditions acceptable to Administrative Agent and the issuer thereof (which issuer shall be Wells Fargo Bank, National Association, a Lender or such other institution reasonably acceptable to Administrative Agent and Lead Borrower (each, an “Issuing Bank”)).  Any payments made by or on behalf of Administrative Agent or any Tranche A Lender to any issuer thereof and/or related parties in connection with the Letter of Credit Accommodations provided to or for the benefit of a Borrower shall constitute additional Tranche A Revolving Loans to such Borrower pursuant to this Section 2 (or Special Administrative Agent Advances as the case may be).

(b)     In addition to any charges, fees or expenses charged by any bank or issuer in connection with the Letter of Credit Accommodations, Borrowers shall pay to Administrative Agent, for the benefit of the Tranche A Lenders, monthly a letter of credit fee on the daily outstanding balance of the Letter of Credit Accommodations during the immediately preceding month (or part thereof) at a rate equal to the percentage (on a per annum basis) set forth below if the Monthly Average Excess Availability for the immediately preceding calendar month is at or within the amounts indicated for such percentages, payable in arrears as of the first day of each succeeding month:

Provided, that, (i) the applicable percentage shall be calculated and established once each month and shall remain in effect until adjusted thereafter after the end of the next month based on the Monthly Average Excess Availability for the immediately preceding month, (ii) notwithstanding the amount of the Monthly Average Excess Availability, for each month prior to the month commencing June 1, 2014, the Applicable Letter of Credit Fee Rate shall be equal to the percentage set forth in Tier 2 of the schedule above and (iii) notwithstanding anything to the contrary contained herein, Administrative Agent may, and upon the written direction of Required Tranche A Lenders shall, require Borrowers to pay to Administrative Agent for the benefit of Tranche A Lenders, such letter of credit fee at a rate equal to two (2%) percent per annum plus the then Applicable Letter of Credit Fee Rate on such daily outstanding balance (A) for the period (1) from and after the effective date of termination or non-renewal hereof until Administrative Agent and Lenders have received full and final payment of all outstanding and unpaid Obligations which are not contingent and cash collateral or letter of credit, as Administrative Agent may specify, in the amounts and on the terms required under Section 13.1 hereof for contingent Obligations (notwithstanding entry of a judgment against any Borrower or Guarantor) and (2) from and after the date of the occurrence of an Event of Default and for so long as such Event of Default is continuing.  Such letter of credit fee shall be calculated on the basis of a three hundred sixty (360) day year and actual days elapsed and the obligation of Borrowers to pay such fee shall survive the termination of this Agreement.

(c)     The Borrower requesting such Letter of Credit Accommodation shall give Administrative Agent two (2) Business Days’ prior written notice of such Borrower’s request for the issuance of a Letter of Credit Accommodation.  Such notice shall be irrevocable and shall specify the original face amount of the Letter of Credit Accommodation requested, the effective date (which date shall be a Business Day and in no event shall be a date less than ten (10) days prior to the end of the then current term of this Agreement) of issuance of such requested Letter of Credit Accommodation, whether such Letter of Credit Accommodations may be drawn in a single or in partial draws, the date on which such requested Letter of Credit Accommodation is to expire (which date shall be a Business Day), the purpose for which such Letter of Credit Accommodation is to be issued, and the beneficiary of the requested Letter of Credit Accommodation.  In no event shall the expiration or termination date of any Letter of Credit Accommodation be on or after five (5) Business Days prior to the Maturity Date.  The Borrower requesting the Letter of Credit Accommodation  shall attach to such notice the proposed terms of the Letter of Credit Accommodation.

(d)    In addition to being subject to the satisfaction of the applicable conditions precedent contained in Section 4 hereof and the other terms and conditions contained herein, no Letter of Credit Accommodations shall be available unless each of the following conditions precedent have been satisfied in a manner satisfactory to Administrative Agent:  (i) the Borrower requesting such Letter of Credit Accommodation shall have delivered to the proposed issuer of such Letter of Credit Accommodation at such times and in such manner as such proposed issuer may require, an application, in form and substance satisfactory to such proposed issuer and Administrative Agent, for the issuance of the Letter of Credit Accommodation and such other documents as may be required pursuant to the terms thereof, and the form and terms of the proposed Letter of Credit Accommodation shall be satisfactory to Administrative Agent and such proposed issuer, (ii) as of the date of issuance, no order of any court, arbitrator or other Governmental Authority shall purport by its terms to enjoin or restrain money center banks generally from issuing letters of credit of the type and in the amount of the proposed Letter of Credit Accommodation, and no law, rule or regulation applicable to money center banks generally and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over money center banks generally shall prohibit, or request that the proposed issuer of such Letter of Credit Accommodation refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit Accommodation, and (iii) the Excess Availability, prior to giving effect to any Reserves with respect to such Letter of Credit Accommodations, on the date of the proposed issuance of any Letter of Credit Accommodations, shall be equal to or greater than: (A) if the proposed Letter of Credit Accommodation is for the purpose of purchasing Eligible Inventory and the documents of title with respect thereto are consigned to the issuer, the sum of (1) the percentage equal to one hundred (100%) percent minus the then applicable percentage with respect to Eligible Inventory set forth in the definition of the term Tranche A Borrowing Base multiplied by the Value of such Eligible Inventory, plus (2) freight, taxes, duty and other amounts which Administrative Agent estimates must be paid in connection with such Inventory upon arrival and for delivery to one of such Borrower’s locations for Eligible Inventory within the United States of America and (B) if the proposed Letter of Credit Accommodation is for any other purpose or the documents of title are not consigned to the issuer in connection with a Letter of Credit Accommodation for the purpose of purchasing Inventory, an amount equal to one hundred (100%) percent of the face amount thereof and all other commitments and obligations made or incurred by Administrative Agent with respect thereto.  Notwithstanding anything to the contrary contained herein, Issuing Bank shall not be obligated to issue a Letter of Credit Accommodation in respect of the obligation of a Borrower or Guarantor arising in connection with a lease of Real Property or an employment contract, (aa) in the case of a Letter of Credit Accommodation in connection with such a lease, with a face amount in excess of the amount equal to (x) the amount of rent under such lease, without acceleration, for the greater of one year or fifteen (15%) percent, not to exceed three (3) years, of the remaining term of such lease minus (y) the amount of any cash or other collateral to secure the obligations of a Borrower or Guarantor in respect of such lease and (bb) in the case of a Letter of Credit in connection with an employment contract, with a face amount in excess of the compensation provided by such contract, without acceleration, for a one year period.  Effective on the issuance of each Letter of Credit Accommodation, a Reserve shall be established in the applicable amount set forth in Section 2.4(d)(iii)(A) or Section 2.4(d)(iii)(B). 

(e)     Except in Administrative Agent’s discretion, with the consent of all Lenders, the amount of all outstanding Letter of Credit Accommodations and all other commitments and obligations made or incurred by Administrative Agent or any Lender in connection therewith shall not at any time exceed $100,000,000.

(f)      Borrowers and Guarantors shall indemnify and hold Administrative Agent and Lenders harmless from and against any and all losses, claims, damages, liabilities, costs and expenses which Administrative Agent or any Lender may suffer or incur in connection with any Letter of Credit Accommodations and any documents, drafts or acceptances relating thereto, including any losses, claims, damages, liabilities, costs and expenses due to any action taken by any issuer or correspondent with respect to any Letter of Credit Accommodation, except to the extent of losses, claims, damages, liabilities, costs or expenses resulting from the gross negligence or willful misconduct of Administrative Agent or any Lender as determined pursuant to a final non-appealable order of a court of competent jurisdiction.  As between Administrative Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, and without limitation of any rights of any Borrower or Guarantor as against any issuer of a Letter of Credit Accommodation, each Borrower and Guarantor assumes all risks with respect to the acts or omissions of the drawer under or beneficiary of any Letter of Credit Accommodation and for such purposes the drawer or beneficiary shall be deemed such Borrower’s agent.  Each Borrower and Guarantor assumes all risks for, and agrees to pay, all foreign, Federal, State and local taxes, duties and levies relating to any goods subject to any Letter of Credit Accommodations or any documents, drafts or acceptances thereunder.  Each Borrower and Guarantor hereby releases and holds Administrative Agent and Lenders harmless from and against any acts, waivers, errors, delays or omissions, whether caused by any Borrower, Guarantor, by any issuer or correspondent or otherwise with respect to or relating to any Letter of Credit Accommodation, except to the extent resulting from the gross negligence or willful misconduct of Administrative Agent or any Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction.  The provisions of this Section 2.4(f) shall survive the payment of Obligations and the termination of this Agreement.

(g)     In connection with Inventory purchased pursuant to Letter of Credit Accommodations, Borrowers and Guarantors shall, at Administrative Agent’s request, instruct all suppliers, carriers, forwarders, customs brokers, warehouses or others receiving or holding cash, checks, Inventory, documents or instruments in which Administrative Agent holds a security interest to, at such time as Administrative Agent may request, deliver them to Administrative Agent and/or subject to Administrative Agent’s order, and if they shall come into such Borrower’s or Guarantor’s possession, to deliver them, upon Administrative Agent’s request, to Administrative Agent in their original form, provided, that, Administrative Agent shall not exercise its rights under this clause (g) to have such persons deliver any cash, checks or Inventory to Administrative Agent unless a Default or Event of Default shall exist or have occurred and be continuing.  Borrowers and Guarantors shall also, at Administrative Agent’s request, designate Administrative Agent as the consignee on all bills of lading and other negotiable and non-negotiable documents.

(h)     Each Borrower and Guarantor hereby irrevocably authorizes and directs any issuer of a Letter of Credit Accommodation to name such Borrower or Guarantor as the account party therein and to deliver to Administrative Agent all instruments, documents and other writings and property received by issuer pursuant to the Letter of Credit Accommodations and to accept and rely upon Administrative Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit Accommodations or the applications therefor.  Nothing contained herein shall be deemed or construed to grant any Borrower or Guarantor any right or authority to pledge the credit of Administrative Agent or any Lender in any manner.  Administrative Agent and Lenders shall have no liability of any kind with respect to any Letter of Credit Accommodation provided by an issuer other than Administrative Agent or any Lender unless Administrative Agent has duly executed and delivered to such issuer the application or a guarantee or indemnification in writing with respect to such Letter of Credit Accommodation.  Borrowers and Guarantors shall be bound by any reasonable interpretation made in good faith by Administrative Agent, or any other issuer or correspondent under or in connection with any Letter of Credit Accommodation or any documents, drafts or acceptances thereunder, notwithstanding that such interpretation may be inconsistent with any instructions of any Borrower or Guarantor, except as to any issuer without limiting the rights of any Borrower or Guarantor as against any issuer to the extent provided in clause (m) below.

(i)       So long as no Event of Default exists or has occurred and is continuing, a Borrower may (i) approve or resolve any questions of non-compliance of documents, (ii) give any instructions as to acceptance or rejection of any documents or goods, (iii) execute any and all applications for steamship or airway guaranties, indemnities or delivery orders, and (iv) with Administrative Agent’s consent, grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or documents, and agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letter of Credit Accommodations, or documents, drafts or acceptances thereunder or any letters of credit included in the Collateral.

(j)       At any time an Event of Default exists or has occurred and is continuing, Administrative Agent shall have the right and authority to, and Borrowers shall not, without the prior written consent of Administrative Agent, (i) approve or resolve any questions of non-compliance of documents, (ii) give any instructions as to acceptance or rejection of any documents or goods, (iii) execute any and all applications for steamship or airway guaranties, indemnities or delivery orders, (iv) grant any extensions of the maturity of, time of payments for, or time of presentation of, any drafts, acceptances, or documents, and (v) agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letter of Credit Accommodations, or documents, drafts or acceptances thereunder or any letters of credit included in the Collateral.  Administrative Agent may take such actions either in its own name or in any Borrower’s name.

(k)     Any rights, remedies, duties or obligations granted or undertaken by any Borrower or Guarantor to any issuer or correspondent in any application for any Letter of Credit Accommodation, or any other agreement in favor of any issuer or correspondent relating to any Letter of Credit Accommodation, shall be deemed to have been granted or undertaken by such Borrower or Guarantor to Administrative Agent for the ratable benefit of Lenders.  Any duties or obligations undertaken by Administrative Agent to any issuer or correspondent in any application for any Letter of Credit Accommodation, or any other agreement by Administrative Agent in favor of any issuer or correspondent to the extent relating to any Letter of Credit Accommodation, shall be deemed to have been undertaken by Borrowers and Guarantors to Administrative Agent for the ratable benefit of Lenders and to apply in all respects to Borrowers and Guarantors.

(l)       Immediately upon the issuance or amendment of any Letter of Credit Accommodation, each Tranche A Lender shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share of the liability with respect to such Letter of Credit Accommodation (including, without limitation, all Obligations with respect thereto).

(m)   Each Borrower is irrevocably and unconditionally obligated, without presentment, demand or protest, to pay to Administrative Agent any amounts paid by an issuer of a Letter of Credit Accommodation with respect to such Letter of Credit Accommodation (whether through the borrowing of Loans in accordance with Section 2.4(a) or otherwise); provided, that, nothing contained herein shall be construed to limit or waive any right of any Borrower to assert against an issuer of a Letter of Credit Accommodation any claim for direct damages suffered by such Borrower to the extent caused by the gross negligence or willful misconduct of the issuer in determining whether a request presented under any Letter of Credit Accommodation issued by it complied with the terms of such Letter of Credit Accommodation.  In the event that any Borrower fails to pay Administrative Agent on the date of any payment under a Letter of Credit Accommodation in an amount equal to the amount of such payment, Administrative Agent (to the extent it has actual notice thereof) shall promptly notify each Tranche A Lender of the unreimbursed amount of such payment and each Tranche A Lender agrees, upon one (1) Business Day’s notice, to fund to Administrative Agent the purchase of its participation in such Letter of Credit Accommodation in an amount equal to its Pro Rata Share of the unpaid amount.  The obligation of each Tranche A Lender to deliver to Administrative Agent an amount equal to its respective participation pursuant to the foregoing sentence is absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuance of any Event of Default, the failure to satisfy any other condition set forth in Section 4 or any other event or circumstance.  If such amount is not made available by a Tranche A Lender when due, Administrative Agent shall be entitled to recover such amount on demand from such Tranche A Lender with interest thereon, for each day from the date such payment was due until the date such amount is paid to Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans.

(a)     Borrowers may prepay without penalty or premium the principal of any Revolving Loan or Swing Line Loan, in whole or in part; provided, that, (i) all such optional prepayments of Revolving Loans shall be applied first to the Tranche A Revolving Loans and second to the Tranche A-1 Revolving Loans and (ii) any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount paid, together with any additional amounts required pursuant to Section 3.3(d) hereof.

(b)     Tranche A-2 Term Loans may be prepaid, in whole or in part, at the option of the Borrowers (and including breakage or similar costs, if any); provided, that, (i) Administrative Agent shall have received not less than five (5) Business Days prior written notice from Lead Borrower of such prepayment, (ii) any such prepayment shall be in a principal amount of not less than $1,000,000 and, if greater, in multiples of $1,000,000, (iii) as of the date of any such prepayment and after giving effect thereto, (A) the daily average of the Excess Availability for the immediately preceding ninety (90) consecutive day period shall have been not less than fifteen (15%) percent of the Loan Limit and after giving effect to any such prepayment in respect thereof, on a pro forma basis using the Total Borrowing Base as of the date of the most recent calculation of the Total Borrowing Base immediately prior to any such payment, the Excess Availability shall be not less than such amount and (B) Administrative Agent shall have received projections reasonably satisfactory to it for the twelve (12) month period after the date of any such payment showing, on a pro forma basis after giving effect to such prepayment, Excess Availability at all times during such period of not less than fifteen (15%) percent of the Loan Limit, and (iv) any such prepayment shall be applied to installments of principal in the inverse order of maturity.

(c)     In the event that (i) the aggregate amount of the Loans (including Swing Line Loans) and the Letter of Credit Accommodations outstanding exceed the Maximum Credit, (ii) the aggregate amount of the Loans (including Swing Line Loans) and Letter of Credit Accommodations outstanding exceed the Total Borrowing Base, (iii) the aggregate amount of the Tranche A Loans, the Swing Line Loans and the Letter of Credit Accommodations outstanding exceed the lesser of the Tranche A Maximum Credit or the Tranche A Borrowing Base, (iv) the aggregate amount of the Tranche A-1 Revolving Loans outstanding exceed the lesser of the Tranche A-1 Maximum Credit or the Tranche A-1 Borrowing Base, or (v) the aggregate amount of the Loans (including Swing Line Loans) and the Letter of Credit Accommodations outstanding exceed the amount permitted under the Senior Note Indenture or exceed the amount that gives rise to the obligation of Parent or any of its Subsidiaries to grant any lien on its assets to secure the Senior Notes, such event shall not limit, waive or otherwise affect any rights of Administrative Agent or Lenders in such circumstances or on any future occasions and Borrowers shall, upon demand by Administrative Agent at its option or in the case of clauses (i), (ii) and (v) above, at the direction of the Required Lenders or in the case of clause (iii) above, at the direction of the Required Tranche A Lenders or in the case of clause (iv) above, at the direction of the Required Tranche A-1 Lenders, which may be made at any time or from time to time, immediately repay to Administrative Agent the entire amount of any such excess(es) for which payment is demanded (and including breakage or similar costs, if any).

(d)    Borrowers shall prepay the Obligations as required under Sections 9.5(a), 9.7(b)(ii), (iii), (v), (vi), (vii), (xi), (xii) and (xiii) and 9.9(f)(ix).

(e)     Except as set forth in Section 2.3(c) hereof, in Section 2.5(c) hereof or in any other provision of this Agreement to the contrary, all mandatory prepayments required to be made hereunder shall be applied first, to the Tranche A Revolving Loans then due, second, to the Tranche A-1 Revolving Loans and third, to the Tranche A-2 Term Loans.

2.6               Increase in Maximum Credit.   

(a)     Lead Borrower may, at any time, deliver a written request to Administrative Agent to increase the Tranche A Maximum Credit.  Any such written request shall specify the amount of the increase in the Tranche A Maximum Credit that Borrowers are requesting, provided, that, (i) in no event shall the aggregate amount of any such increase cause the Maximum Credit to exceed $1,400,000,000, (ii) any such request shall be for an increase of not less than $50,000,000, (iii) any such request shall be irrevocable, (iv) in no event shall there be more than four (4) such increases and (v) as of the date of any such increase, and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing.

(b)     Upon the receipt by Administrative Agent of any such written request, Administrative Agent shall notify each of the Tranche A Lenders of such request and each Tranche A Lender shall have the option (but not the obligation) to increase the amount of its Tranche A Commitment by an amount up to its Pro Rata Share of the amount of the increase thereof requested by Lead Borrower as set forth in the notice from Administrative Agent to such Tranche A Lender.  Each Tranche A Lender shall notify Administrative Agent within fifteen (15) days after the receipt of such notice from Administrative Agent whether it is willing to so increase its Tranche A Commitment, and if so, the amount of such increase; provided, that, (i) the minimum increase in the Tranche A Commitments of each such Tranche A Lender providing the additional Tranche A Commitments shall equal or exceed $1,000,000, and (ii) no Tranche A Lender shall be obligated to provide such increase in its Tranche A Commitment and the determination to increase the Tranche A Commitment of a Tranche A Lender shall be within the sole and absolute discretion of such Tranche A Lender.  If the aggregate amount of the increases in the Tranche A Commitments received from the Tranche A Lenders does not equal or exceed the amount of the increase in the Tranche A Maximum Credit requested by Lead Borrower, Administrative Agent may seek additional increases from Lenders or Tranche A Commitments from such Eligible Transferees as it may determine, after consultation with Lead Borrower.  In the event Tranche A Lenders (or Tranche A Lenders and any such Eligible Transferees, as the case may be) have committed in writing to provide increases in their Tranche A Commitments or new Tranche A Commitments in an aggregate amount in excess of the increase in the Tranche A Maximum Credit requested by Borrowers or permitted hereunder, Administrative Agent shall then have the right to allocate such commitments, first to Tranche A Lenders and then to Eligible Transferees, in such amounts and manner as Administrative Agent may determine, after consultation with Lead Borrower.  If the aggregate amount of the increase in Tranche A Commitments and new Tranche A Commitments, as the case may be, do not equal or exceed the amount of the increase in the Tranche A Maximum Credit requested by Lead Borrower, then Lead Borrower in its sole discretion may determine to not proceed with the proposed increase in the Tranche A Maximum Credit; provided, that, Lead Borrower notifies Administrative Agent of such decision not to proceed within three (3) days after Administrative Agent notifies Lead Borrower of the aggregate amount of the increase in Tranche A Commitments and new Tranche A Commitments that the Tranche A Lenders and/or Eligible Assignees have committed to.

(c)     The Tranche A Maximum Credit shall be increased by the amount of the increase in the applicable Tranche A Commitments from Tranche A Lenders or new Tranche A Commitments from Eligible Transferees, in each case, selected in accordance with Section 2.6(b) above, for which Administrative Agent has received Assignment and Acceptances thirty (30) days after the date of the request by Lead Borrower for the increase or such earlier date as Administrative Agent and Lead Borrower may agree (but subject to the satisfaction of the conditions set forth below), whether or not the aggregate amount of the increase in Tranche A Commitments and new Tranche A Commitments, as the case may be, exceed the amount of the increase in the Tranche A Maximum Credit requested by Lead Borrower in accordance with the terms hereof, effective on the date that each of the following conditions have been satisfied:

(i)         Administrative Agent shall have received from each Tranche A Lender or Eligible Transferee that is providing an additional Tranche A Commitment as part of the increase in the Tranche A Maximum Credit, an Assignment and Acceptance duly executed by such Lender or Eligible Transferee and each Borrower, provided, that, the aggregate Tranche A Commitments set forth in any such Assignment and Acceptance shall be not less than $1,000,000;

(ii)       the conditions precedent to the making of Loans set forth in Section 4.2 shall be satisfied as of the date of the increase in the Tranche A Maximum Credit, both before and after giving effect to such increase;

(iii)     such increase in the Tranche A Maximum Credit, on the date of the effectiveness thereof, shall not violate any applicable law (including, without limitation, FIRREA), regulation or order or decree of any court or other Governmental Authority and shall not be enjoined, temporarily, preliminarily or permanently; and

(iv)     there shall have been paid to each Tranche A Lender and Eligible Transferee providing an additional Commitment in connection with such increase in the Tranche A Maximum Credit all fees and expenses due and payable to such Person on or before the effectiveness of such increase.

(d)    As of the effective date of any such increase in the Tranche A Maximum Credit, each reference to the term Tranche A Commitments and Tranche A Maximum Credit herein, as applicable, and in any of the other Financing Agreements shall be deemed amended to mean the amount of the Tranche A Commitments and Tranche A Maximum Credit specified in the most recent written notice from Administrative Agent to Lead Borrower of the increase in the Tranche A Commitments and Tranche A Maximum Credit, as applicable.

(e)     Effective on the date of each increase in the Tranche A Maximum Credit pursuant to this Section 2.6, as applicable, each reference in this Agreement to an amount of Excess Availability shall, automatically and without any further action, be deemed to be increased so that the ratio of each amount of Excess Availability to the amount of the Maximum Credit after such increase in the Maximum Credit remains the same as the ratio of such the amount of Excess Availability to the amount of the Maximum Credit prior to such increase in the Maximum Credit.

(f)      In the event that, as a result of an increase in the Tranche A Maximum Credit, the Pro Rata Shares of any Lender or Lenders with respect to any Eurodollar Rate Loans are decreased (other than on the last date of the Interest Period(s) applicable thereto), Borrowers shall pay such Lenders, on the effective date of such increase in the Tranche A Maximum Credit, break funding compensation with respect to such decrease in the amount that would be due pursuant to Section 3.3(d) hereof had the Borrowers prepaid such Lenders' interests in such Eurodollar Rate Loans by an amount equal to the decrease.

(g)     In no event shall the fees, interest rate and other compensation offered or paid in respect of additional Tranche A Commitments or increase in Tranche A Commitments be higher than the amounts paid and payable to the then existing Tranche A Lenders in respect of their Tranche A Commitments, unless the fees, interest rate and other compensation payable to the then existing Tranche A Lenders are increased to the same as those paid in connection with the such new or additional Tranche A Commitments, except for the initial commitment fee payable in respect of such new or additional Tranche A Commitment of a Tranche A Lender.

.  The aggregate amount of each Tranche A Lender’s Pro Rata Share of the Tranche A Revolving Loans, Swing Line Loans and Letter of Credit Accommodations shall not exceed the amount of such Lender’s Tranche A Commitment, as the same may from time to time be amended in accordance with the provisions hereof.  The aggregate amount of each Tranche A-1 Lender’s Pro Rata Share of the Tranche A-1 Revolving Loans shall not exceed the amount of such Lender’s Tranche A-1 Commitment, as the same may from time to time be amended in accordance with the provisions hereof.  The aggregate amount of each Tranche A-2 Lender’s Pro Rata Share of the Tranche A-2 Term Loans shall not exceed the amount of such Lender’s Tranche A-2 Commitment, as the same may from time to time be amended in accordance with the provisions hereof.

.  All Borrowers shall be jointly and severally liable for all amounts due to Administrative Agent and Lenders under this Agreement and the other Financing Agreements, regardless of which Borrower actually receives the Loans or Letter of Credit Accommodations hereunder or the amount of such Loans received or the manner in which Administrative Agent or any Lender accounts for such Loans, Letter of Credit Accommodations or other extensions of credit on its books and records.  All references herein or in any of the other Financing Agreements to any of the obligation of Borrowers to make any payment hereunder or thereunder shall constitute joint and several obligations of Borrowers. The Obligations with respect to Loans made to a Borrower, and the Obligations arising as a result of the joint and several liability of a Borrower hereunder, with respect to Loans made to the other Borrowers, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers.  The Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers shall, to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or enforceability, avoidance or subordination of the Obligations of the other Borrowers or of any promissory note or other document evidencing all or any part of the Obligations of the other Borrowers, (b) the absence of any attempt to collect the Obligations from the other Borrowers, any Guarantor or any other security therefor, or the absence of any other action to enforce the same, (c) the waiver, consent, extension, forbearance or granting of any indulgence by Administrative Agent or any Lender with respect to any provisions of any instrument evidencing the Obligations of the other Borrowers, or any part thereof, or any other agreement now or hereafter executed by the other Borrowers and delivered to Administrative Agent or any Lender, (d) the failure by Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the other Borrowers, (e) the election of Administrative Agent and Lenders in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (f) the disallowance of all or any portion of the claim(s) of Administrative Agent or any Lender for the repayment of the Obligations of the other Borrowers under Section 502 of the Bankruptcy Code, or (g) any other circumstances which might constitute a legal or equitable discharge or defense of a Guarantor or of the other Borrowers other than to the extent of the gross negligence or wilful misconduct of Administrative Agent or a Lender as determined pursuant to a final non-appealable order of a court of competent jurisdiction. With respect to the Obligations arising as a result of the joint and several liability of a Borrower hereunder with respect to Loans, Letter of Credit Accommodations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which Administrative Agent or any Lender now has or may hereafter have against any Borrower or Guarantor and any benefit of, and any right to participate in, any security or collateral given to Administrative Agent or any Lender.  Upon any Event of Default, and for so long as such Event of Default is continuing, Administrative Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations.  Each Borrower consents and agrees that Administrative Agent and Lenders shall be under no obligation to marshall any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations.  To the extent of any guarantee or similar liability with respect to Swap Obligations, each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Borrower or Guarantor to honor all of its obligations under any such guarantee or similar liability in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable for the maximum amount of such liability that can be hereby incurred without rendering its obligations as it relates to such other Borrower or Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). Each Qualified ECP Guarantor intends that this provision constitute a “keepwell, support, or other agreement” for the benefit of each other Borrower or Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  The term “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Borrower or Guarantor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder. The term “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.  The term “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

3.1               Interest.   

(a)     Borrowers shall pay to Administrative Agent, for the benefit of Lenders, interest on the outstanding principal amount of the Loans at the Interest Rate.  All interest accruing hereunder on and after the date of any Event of Default or termination hereof shall be payable on demand.

(b)     Each Borrower may from time to time request Eurodollar Rate Loans or may request that Base Rate Loans be converted to Eurodollar Rate Loans or that any existing Eurodollar Rate Loans continue for an additional Interest Period.  Such request from a Borrower shall specify the amount of the Eurodollar Rate Loans or the amount of the Base Rate Loans to be converted to Eurodollar Rate Loans or the amount of the Eurodollar Rate Loans to be continued (subject to the limits set forth below) and the Interest Period to be applicable to such Eurodollar Rate Loans.  Subject to the terms and conditions contained herein, three (3) Business Days after receipt by Administrative Agent of such a request from a Borrower, such Eurodollar Rate Loans shall be made or Base Rate Loans shall be converted to Eurodollar Rate Loans or such Eurodollar Rate Loans shall continue, as the case may be, provided, that, (i) no Default or Event of Default shall exist or have occurred and be continuing, (ii) no party hereto shall have sent any notice of termination of this Agreement, such Borrower shall have complied with such customary procedures as are established by Administrative Agent and specified by Administrative Agent to Lead Borrower from time to time for requests by Borrowers for Eurodollar Rate Loans, (iii) no more than fifteen (15) Interest Periods may be in effect at any one time, (iv) the amount of any Eurodollar Rate Loan shall be not less than $1,000,000 and the aggregate amount of the Eurodollar Rate Loans outstanding at any time must be in an amount not less than $5,000,000, and (v) Administrative Agent and each Lender shall have determined that the Interest Period or Adjusted Eurodollar Rate is available to Administrative Agent and such Lender and can be readily determined as of the date of the request for such Eurodollar Rate Loan by such Borrower.  Any request by or on behalf of a Borrower for Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans or to continue any existing Eurodollar Rate Loans shall be irrevocable.  Notwithstanding anything to the contrary contained herein, Administrative Agent and Lenders shall not be required to purchase United States Dollar deposits in the London interbank market or other applicable Eurodollar Rate market to fund any Eurodollar Rate Loans, but the provisions hereof shall be deemed to apply as if Administrative Agent and Lenders had purchased such deposits to fund the Eurodollar Rate Loans. 

(c)     Any Eurodollar Rate Loans shall automatically convert to Base Rate Loans upon the last day of the applicable Interest Period, unless Administrative Agent has received and approved a request to continue such Eurodollar Rate Loan at least three (3) Business Days prior to such last day in accordance with the terms hereof.  Any Eurodollar Rate Loans shall, at Administrative Agent’s option, upon notice by Administrative Agent to Lead Borrower, be subsequently converted to Base Rate Loans in the event that this Agreement shall terminate or not be renewed.  Borrowers shall pay to Administrative Agent, for the benefit of Lenders, upon demand by Administrative Agent (or Administrative Agent may, at its option, charge any loan account of any Borrower) any amounts required to compensate any Lender or Participant for any loss (including loss of anticipated profits), cost or expense incurred by such person, as a result of the conversion of Eurodollar Rate Loans to Base Rate Loans pursuant to any of the foregoing.

(d)    Interest shall be payable by Borrowers to Administrative Agent, for the account of Lenders, monthly in arrears not later than the first day of each calendar month and shall be calculated on the basis of a three hundred sixty (360) day year and actual days elapsed.  The interest rate on non-contingent Obligations (other than Eurodollar Rate Loans) shall increase or decrease by an amount equal to each increase or decrease in the Base Rate effective on the first day of the month after any change in such Base Rate is announced based on the Base Rate in effect on the last day of the month in which any such change occurs.  In no event shall charges constituting interest payable by Borrowers to Administrative Agent and Lenders exceed the maximum amount or the rate permitted under any applicable law or regulation, and if any such part or provision of this Agreement is in contravention of any such law or regulation, such part or provision shall be deemed amended to conform thereto.

(a)     Borrowers shall pay to Administrative Agent, for the account of Tranche A Lenders and Tranche A-1 Lenders, an unused line fee calculated at one-quarter of one (0.25%) percent per annum until May 31, 2014 and adjusted thereafter every month (based on the Monthly Average Excess Availability for the immediately preceding month) to an amount equal to the applicable rate set forth below per annum, in each case, multiplied by the difference between the Tranche A Maximum Credit plus the Tranche A-1 Maximum Credit and the average outstanding Revolving Loans and Letter of Credit Accommodations during the immediately preceding month (or part thereof) while this Agreement is in effect and for so long thereafter as any of the Obligations are outstanding, which fee shall be payable on the first day of each month in arrears: 

Swing Line Loans shall not be considered in the calculation of the unused line fee.  Such unused line fee shall be calculated on the basis of a 360 day year and actual days elapsed.

(b)     Borrowers agree to pay to Administrative Agent the other fees and amounts set forth in the Fee Letter in the amounts and at the times specified therein.

3.3               Changes in Laws and Increased Costs of Loans.   

(a)     If after the Effective Date, either (i) any change in, or in the interpretation of, any law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “Funding Bank”), or (ii) a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s capital as a consequence of its obligations hereunder to a level below that which Lender could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, and the result of any of the foregoing events described in clauses (i), (ii) or (iii) is or results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then Borrowers and Guarantors shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify Lenders against such increased cost on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified).  A certificate as to the amount of such increased cost shall be submitted to Lead Borrower by Administrative Agent and shall be conclusive, absent manifest error.

(b)     If prior to the first day of any Interest Period, (i) Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, (ii) Administrative Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Administrative Agent shall give telecopy or telephonic notice thereof to Lead Borrower as soon as practicable thereafter, and will also give prompt written notice to Lead Borrower when such conditions no longer exist.  If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans.  Until such notice has been withdrawn by Administrative Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall any Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans.

(c)     Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Effective Date shall make it unlawful for Administrative Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement, (i) Administrative Agent or such Lender shall promptly give written notice of such circumstances to Lead Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law.  If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below.

(d)    Borrowers and Guarantors shall indemnify Administrative Agent and each Lender and to hold Administrative Agent and each Lender harmless from any loss or expense which Administrative Agent or such Lender may sustain or incur as a consequence of (i) default by a Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after such Borrower has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by any Borrower in making any prepayment of a Eurodollar Rate Loan after such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto.  With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein over  (B) the amount of interest (as determined by such Administrative Agent or such Lender) which would have accrued to Administrative Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market.  This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations.

(e)     Borrowers and Guarantors shall be liable for any tax or penalties imposed on Administrative Agent or any Lender as a result  of the financing arrangements provided for herein and each Borrower and Guarantor agrees to indemnify and hold Administrative Agent harmless with respect to the foregoing, and to repay to Administrative Agent, for the benefit of Lenders, on demand the amount thereof, and until paid by such Borrower or Guarantor such amount shall be added and deemed part of the Loans, provided, that, nothing contained herein shall be construed to require any Borrower or Guarantor to pay any income, franchise or similar taxes imposed upon Lenders and attributable to any amounts charged or paid hereunder to Lenders.  The foregoing indemnity shall survive the payment of the Obligations and the termination of this Agreement.

(f)      Each Lender requiring compensation pursuant to Section 3.3(a), 3.3(d) or 3.3(e) shall notify Borrowers and Administrative Agent in writing of any event or circumstance giving rise to such demand for compensation no later than ninety (90) days following the date upon which the Lender has actual knowledge of such event or circumstance, and Borrowers shall not be obligated to compensate a Lender for any such increased cost or reduction which is not covered in such notice within such ninety (90) day period.  Any demand for compensation pursuant to this Section 3.3 shall be in writing and shall state the amount due, if any, under Section 3.3(d) or 3.3(e) and shall set forth in reasonable detail the calculations upon which such Lender determined such amount.  Such written demand shall be conclusive, absent manifest error.

(g)     If a Borrower is required to pay additional amounts to any Lender pursuant to Section 3.3(a) or Section 3.3(e) that increase the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders, then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making Eurodollar Rate Loans so as to eliminate any such additional payment by Borrowers which may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender.  In the event that any one or more Lenders, pursuant to Section 3.3(a) or Section 3.3(e) hereof, incur any increased costs or taxes (other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) or Section 3.3(e) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Lender from Lead Borrower of a written notice that such Lender’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Lead Borrower may substitute another financial institution which is an Eligible Transferee acceptable to Administrative Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender 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.

.  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 with material applicable law and regulatory approvals where the failure to comply would reasonably be expected to be materially adverse to the Administrative Agent and Lenders, and Administrative Agent shall have received evidence of the consummation of the Nash-Finch Merger;

(b)     Excess Availability, as of the Effective Date, shall be not less than $300,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder and after provision for payment of all fees and expenses of the initial transactions hereunder (which amount may be reduced by up to $50,000,000 solely to the extent of the aggregate amount of the availability based on any of the parcels of Real Property listed on Schedule 1.52 hereto that would have been included in the Tranche A Real Estate Availability or Tranche A-2 Real Estate Availability but for the failure of such parcel to satisfy the requirements for Eligible Real Property as of the Effective Date);

(c)     receipt by Arrangers of: (i) any updates or modifications to the projected financial statements of Parent and its Subsidiaries previously received by Arrangers or to any of the assumptions with respect thereto, (ii) copies of interim unaudited financial statements for each quarter and month since the last audited financial statements of Borrowers and Guarantors and (iii) third party appraisals, field examinations and environmental audits in accordance with

Administrative Agent’s customary procedures and in a form and scope substantially consistent with those previously delivered in connection with the Existing Spartan Credit Agreement and the Existing Nash-Finch Credit Agreement;

(d)    execution and delivery of all Financing Agreements by the parties thereto, subject to clause (e) below, except, that, with respect to the delivery of Collateral Access Agreements for leased or third party locations, the failure to deliver such agreements shall not be a condition of making the initial Loans, provided, that, Borrowers shall have used commercially reasonable efforts to obtain such agreements prior to the Effective Date and to the extent not delivered prior to the Effective Date shall use commercially reasonable efforts to obtain such agreements thereafter (and to the extent that Administrative Agent has not received reasonably acceptable Collateral Access Agreements for a leased or third party location, it may establish a Reserve in respect of amounts payable under the applicable lease or other agreement pursuant to the terms of this Agreement), and including, without limitation, receipt of the following, each in form and substance satisfactory to Administrative Agent: (i) subject to clause (e) below, Deposit Account Control Agreements by and among Administrative Agent, each Borrower and each bank where such Borrower has a deposit account other than banks where such Borrower maintains a Store Account for which no Deposit Account Control Agreement is required pursuant to Section 6.3 hereof, in each case, duly authorized, executed and delivered by such bank and Borrower, (ii) originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto, (iii) lien (including tax lien) and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, (iv) evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements and certificates of insurance policies and/or endorsements naming Administrative Agent as loss payee, (v) such opinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Administrative Agent may reasonably request, limited to one (1) such outside counsel opinion for each applicable jurisdiction (it being agreed that one (1) counsel may opine on multiple jurisdictions, as applicable), and (vi) records of any required corporate or limited liability company action and proceedings of Borrowers and Guarantors approving an authorizing the execution, delivery and performance of this Agreement, the other Financing Agreements and the transactions contemplated hereby therewith, such documents where requested by Administrative Agent or its counsel to be certified by appropriate officers or a Governmental Authority, if applicable (and including a copy of the articles or certificate of incorporation or comparable organizational documents of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of such Borrower or Guarantor as is set forth herein;

(e)     Administrative Agent, for the benefit of itself and the other Secured Parties, shall hold perfected, first priority (subject to the permitted liens set forth in Sections 9.8(b), 9.8(c), 9.8(d), 9.8(e), 9.8(f), 9.8(g), 9.8(h), 9.8(i), 9.8(j), 9.8(m) and 9.8(o) to the extent such liens may have priority under applicable law), security interests in and liens upon the Collateral, and Administrative Agent shall have received such evidence of the foregoing as it reasonably requires, except, that, to the extent any Collateral (including the creation or perfection of any security interest therein) is not or cannot be provided on the Effective Date after the use of commercially reasonable efforts by Parent to do so, without undue burden or expense, then the perfection of any such lien, security interest and/or Collateral shall not constitute a condition precedent to the initial funding under this Agreement on the Effective Date but will be provided within ninety (90) days of the Effective Date or such longer period as Arrangers may reasonably agree (other than with respect to (i) the perfection of security interests in and liens on assets with respect to which a security interest may be perfected on the Effective Date solely by the filing of financing statements under the UCC or by the filing of a notice with the United States Patent and Trademark Office or the United States Copyright Office, and (ii) the perfection of security interests in and liens on the Capital Stock of Parent’s direct or indirect domestic Subsidiaries (after giving effect to the Nash-Finch Merger) with respect to which a security interest may be perfected on the Effective Date by the delivery of a stock certificate);

(f)      subject to clause (e) above, Administrative Agent, for the benefit of itself and the other Secured Parties, shall have received such documentation as is necessary to, upon filing, recording or registration, hold first priority (subject to the permitted liens set forth in Sections 9.8(b), 9.8(c), 9.8(d), 9.8(e), 9.8(f), 9.8(g), 9.8(h), 9.8(i), 9.8(j), 9.8(m) and 9.8(o) to the extent such liens may have priority under applicable law), perfected security interests in and liens upon the Collateral;

(g)     Administrative Agent and Lenders shall have received all documentation and other information reasonably required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent Administrative Agent has requested such information at least ten (10) Business Days prior to the Effective Date;

(h)     no “Spartan Material Adverse Effect” (as defined in the Nash-Finch Merger Agreement as in effect on July 21, 2013 and as delivered to Arrangers) shall have occurred since March 30, 2013, or “Nash-Finch Material Adverse Effect” (as defined in the Nash-Finch Merger Agreement as in effect on July 21, 2013 and as delivered to Arrangers) shall have occurred since December 29, 2012;

(i)       all costs, fees and expenses contemplated hereby due and payable on the Effective Date to Administrative Agent, Arrangers and Lenders in respect of the Credit Facility, to the extent invoiced at least two (2) Business Days prior to the Effective Date (or such later date as Parent may reasonably agree) shall, upon the initial borrowing under the Credit Facility, have been paid or charged to any loan account of Borrowers maintained by Administrative Agent and Borrowers shall have complied in all material respects with their obligations to assist in the syndication of the Credit Facility;

(j)       Arrangers shall have received a solvency certificate from the Chief Financial Officer of Parent substantially in the form attached as Exhibit G hereof certifying that as of the Effective Date and after giving effect to the Credit Facility, the Nash-Finch Merger and the transactions reasonably contemplated hereby, Parent and its Subsidiaries, taken as a whole, shall be Solvent; and

(k)     the Specified Representations and the Merger Agreement Representations shall be true and correct on the Effective Date.

.  Each of the following is a condition precedent to the making of any Loans and/or providing Letter of Credit Accommodations to Borrowers:

(a)     all representations and warranties contained herein and in the other Financing Agreements (but, on the Effective Date and with respect to the making of the initial Loans only, with respect to only the Merger Agreement Representations and the Specified Representations and subject to Section 4.1(e)) shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) with the same effect as though such representations and warranties had been made on and as of the date of the making of each such Loan or providing each such Letter of Credit Accommodation and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of such earlier date);

(b)     no law, regulation, order, judgment or decree of any Governmental Authority shall exist, and no action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or Governmental Authority, which purports to enjoin, prohibit, restrain or otherwise affect (i) the making of the Loans or providing the Letter of Credit Accommodations, or (ii) the consummation of the transactions contemplated pursuant to the terms hereof or the other Financing Agreements;

(c)     other than with respect to the initial Loans made and initial Letter of Credit Accommodations provided, in each case, on the Effective Date, no Default or Event of Default shall exist or have occurred and be continuing on and as of the date of the making of such Loan or providing each such Letter of Credit Accommodation and after giving effect thereto;

(d)    after giving effect to the requested Tranche A Revolving Loan or Letter of Credit Accommodation, the outstanding Tranche A Revolving Loans and Letter of Credit Accommodation will not exceed the lesser of the Tranche A Maximum Credit or the Tranche A Borrowing Base as then in effect,

(e)     after giving effect to the requested Tranche A-1 Revolving Loan, the outstanding Tranche A-1 Revolving Loans will not exceed the lesser of the Tranche A-1 Maximum Credit or the Tranche A-1 Borrowing Base as then in effect, and

(f)      after giving effect to the requested Revolving Loan or Letter of Credit Accommodation, the outstanding Loans will not exceed the lesser of the Maximum Credit or the Total Borrowing Base as then in effect.

5.1               Grant of Security Interest.   

(a)     To secure payment and performance of all Obligations, each Borrower and Guarantor hereby grants to Administrative Agent, for itself and the benefit of Secured Parties, a continuing security interest in, a lien upon, and a right of set off against, and hereby assigns to Administrative Agent, for itself and the benefit of Secured Parties, as security, all personal and real property and fixtures, and interests in property and fixtures, of each Borrower and Guarantor, whether now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Obligations at any time granted to or held or acquired by Administrative Agent or any Secured Party, collectively, the “Collateral”), including:

(i)         all Accounts;

(ii)       all general intangibles, including, without limitation, all Intellectual Property;

(iii)     all goods, including, without limitation, Inventory and Equipment;

(iv)     all Real Property and fixtures;

(v)       all chattel paper, including, without limitation, all tangible and electronic chattel paper;

(vi)     all instruments, including, without limitation, all promissory notes;

(vii)   all documents;

(viii)   all deposit accounts;

(ix)     all letters of credit, banker’s acceptances and similar instruments and including all letter-of-credit rights;

(x)       all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Receivables and other Collateral, including (A)  rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the Collateral, (B)  rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (C)  goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Receivables or other Collateral, including returned, repossessed and reclaimed goods, and (D)  deposits by and property of Account Debtors or other persons securing the obligations of Account Debtors;

(xi)     all (1) investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and (2) monies, credit balances, deposits and other property of any Borrower or Guarantor now or hereafter held or received by or in transit to Administrative Agent, any Lender or its Affiliates or at any other depository or other institution from or for the account of any Borrower or Guarantor, whether for safekeeping, pledge, custody, transmission, collection or otherwise;

(xii)   all commercial tort claims, including, without limitation, those identified in the Information Certificate;

(xiii)   to the extent not otherwise described above, all Receivables;

(xiv)   all Prescription Files and other Records; and

(xv)   all products and proceeds of the foregoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to or destruction of or other involuntary conversion of any kind or nature of any or all of the other Collateral.

(b)     Notwithstanding anything to the contrary set forth in Section 5.1(a) above, the types or items of Collateral described in such Section shall not include the following (the “Excluded Assets”): (i) deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s employees), (ii) any rights or interests in any contract, lease, permit, license or license agreement covering real or personal property, if under the terms of such contract, lease, permit, license or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited and such prohibition has not been waived or the consent of the other party to such contract, lease, permit, license or license agreement has not been obtained; provided, that, (A) the foregoing exclusion shall in no way be construed to apply (1) if any such prohibition is unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other applicable law or (2) to the extent that any consent or waiver has been obtained that would permit Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions shall in no way be construed so as to limit, impair or otherwise affect Administrative Agent’s or any Lender’s continuing security interests in and liens upon any rights or interests of any Borrower or Guarantor in or to (1) monies due or to become due under any such contract, lease, permit, license, license agreement or stock, or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement or stock, (iii) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that, upon submission and acceptance by the U.S. Patent and Trademark Office of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a), such intent-to-use trademark application shall be considered Collateral, (iv) shares of any Subsidiary that is a “controlled foreign corporation” in excess of sixty-five (65%) percent of all of the issued and outstanding shares of Capital Stock of such Subsidiary entitled to vote (within the meaning of Treasury Regulation Section 1.956-2) or (v) any alcoholic liquor of any Borrower or Guarantor, if under applicable law with respect thereto, the valid grant of a security interest or lien therein to Administrative Agent is prohibited and such prohibition is not capable of being waived or modified under such applicable law; provided, that, the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect Administrative Agent’s unconditional continuing security interests in and liens upon all proceeds of any of the foregoing Excluded Assets and any rights or interests of such Borrower or Guarantor in or to monies due or to become due with respect to or under any contract, lease, permit, license, charter or license agreement (including any Receivables) with respect thereto.

(a)     Each Borrower and Guarantor irrevocably and unconditionally authorizes Administrative Agent (or its agent) to file at any time and from time to time such financing statements with respect to the Collateral naming Administrative Agent or its designee as the secured party and such Borrower or Guarantor as debtor, as Administrative Agent may require, and including any other information with respect to such Borrower or Guarantor or otherwise required by part 5 of Article 9 of the Uniform Commercial Code of such jurisdiction as Administrative Agent may determine, together with any amendment and continuations with respect thereto, which authorization shall apply to all financing statements filed on, prior to or after the Effective Date.  Each Borrower and Guarantor hereby ratifies and approves all financing statements naming Administrative Agent or its designee as secured party and such Borrower or Guarantor, as the case may be, as debtor with respect to the Collateral (and any amendments with respect to such financing statements) filed by or on behalf of Administrative Agent prior to the Effective Date and ratifies and confirms the authorization of Administrative Agent to file such financing statements (and amendments, if any).  Each Borrower and Guarantor hereby authorizes Administrative Agent to adopt on behalf of such Borrower and Guarantor any symbol required for authenticating any electronic filing.  In the event that the description of the collateral in any financing statement naming Administrative Agent or its designee as the secured party and any Borrower or Guarantor as debtor includes assets and properties of such Borrower or Guarantor that do not at any time constitute Collateral, whether hereunder, under any of the other Financing Agreements or otherwise, the filing of such financing statement shall nonetheless be deemed authorized by such Borrower or Guarantor to the extent of the Collateral included in such description and it shall not render the financing statement ineffective as to any of the Collateral or otherwise affect the financing statement as it applies to any of the Collateral.  In no event shall any Borrower or Guarantor at any time file, or permit or cause to be filed, any correction statement or termination statement with respect to any financing statement (or amendment or continuation with respect thereto) naming Administrative Agent or its designee as secured party and such Borrower or Guarantor as debtor.

(b)     Each Borrower and Guarantor does not have any chattel paper (whether tangible or electronic) or instruments as of the Effective Date, except as set forth in the Information Certificate.  In the event that any Borrower or Guarantor shall be entitled to or shall receive any chattel paper or instrument after the Effective Date, Borrowers and Guarantors shall promptly notify Administrative Agent thereof in writing.  Promptly upon the receipt thereof by or on behalf of any Borrower or Guarantor (including by any agent or representative), such Borrower or Guarantor shall deliver, or cause to be delivered to Administrative Agent, all tangible chattel paper and instruments that such Borrower or Guarantor has or may at any time acquire, accompanied by such instruments of transfer or assignment duly executed in blank as Administrative Agent may from time to time specify, in each case except as Administrative Agent may otherwise agree.  At Administrative Agent’s option, each Borrower and Guarantor shall, or Administrative Agent may at any time on behalf of any Borrower or Guarantor, cause the original of any such instrument or chattel paper to be conspicuously marked in a form and manner acceptable to Administrative Agent with the following legend referring to chattel paper or instruments as applicable: “This [chattel paper][instrument] is subject to the security interest of Wells Fargo Capital Finance, LLC and any sale, transfer, assignment or encumbrance of this [chattel paper][instrument] violates the rights of such secured party.”

(c)     In the event that any Borrower or Guarantor shall at any time hold or acquire an interest in any electronic chattel paper or any “transferable record” (as such term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction), such Borrower or Guarantor shall promptly notify Administrative Agent thereof in writing.  Promptly upon Administrative Agent’s request, such Borrower or Guarantor shall take, or cause to be taken, such actions as Administrative Agent may request to give Administrative Agent control of such electronic chattel paper under Section 9-105 of the UCC and control of such transferable record under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as in effect in such jurisdiction.

(d)    Each Borrower and Guarantor does not have any deposit accounts as of the Effective Date, except as set forth in the Information Certificate.  Borrowers and Guarantors shall not, directly or indirectly, after the Effective Date open, establish or maintain any deposit account unless each of the following conditions is satisfied:  (i) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of any Borrower or Guarantor to open or establish such account which notice shall specify in reasonable detail and specificity acceptable to Administrative Agent the name of the account, the owner of the account, the name and address of the bank at which such account is to be opened or established, the individual at such bank with whom such Borrower or Guarantor is dealing and the purpose of the account, (ii) the bank where such account is opened or maintained shall be acceptable to Administrative Agent, and (iii) on or before the opening of such deposit account, such Borrower or Guarantor shall as Administrative Agent may specify either (A) deliver to Administrative Agent a Deposit Account Control Agreement with respect to such deposit account duly authorized, executed and delivered by such Borrower or Guarantor and the bank at which such deposit account is opened and maintained or (B) arrange for Administrative Agent to become the customer of the bank with respect to the deposit account on terms and conditions acceptable to Administrative Agent.  The terms of this subsection (d) shall not apply to deposit accounts specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s salaried employees or deposit  accounts for which a Deposit Account Control Agreement is not required pursuant to Section 6.3.

(e)     No Borrower or Guarantor owns or holds, directly or indirectly, beneficially or as record owner or both, any investment property, as of the Effective Date, or have any investment account, securities account, commodity account or other similar account with any bank or other financial institution or other securities intermediary or commodity intermediary as of the Effective Date, in each case except as set forth in the Information Certificate.

(f)      In the event that any Borrower or Guarantor shall be entitled to or shall at any time after the Effective Date hold or acquire any certificated securities, such Borrower or Guarantor shall promptly endorse, assign and deliver the same to Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as Administrative Agent may from time to time specify.  If any securities, now or hereafter acquired by any Borrower or Guarantor are uncertificated and are issued to such Borrower or Guarantor or its nominee directly by the issuer thereof, such Borrower or Guarantor shall immediately notify Administrative Agent thereof and cause the issuer to agree to comply with instructions from Administrative Agent as to such securities, without further consent of any Borrower or Guarantor or such nominee.

(g)     Borrowers and Guarantors shall not, directly or indirectly, after the Effective Date open, establish or maintain any investment account, securities account, commodity account or any other similar account (other than a deposit account) with any securities intermediary or commodity intermediary unless each of the following conditions is satisfied: (i)  Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of such Borrower or Guarantor to open or establish such account which notice shall specify in reasonable detail and specificity acceptable to Administrative Agent the name of the account, the owner of the account, the name and address of the securities intermediary or commodity intermediary at which such account is to be opened or established, the individual at such intermediary with whom such Borrower or Guarantor is dealing and the purpose of the account, (ii) the securities intermediary or commodity intermediary (as the case may be) where such account is opened or maintained shall be acceptable to Administrative Agent, and (iii) on or before the opening of such investment account, securities account or other similar account with a securities intermediary or commodity intermediary, such Borrower or Guarantor shall execute and deliver, and cause to be executed and delivered to Administrative Agent, an Investment Property Control Agreement with respect thereto duly authorized, executed and delivered by such Borrower or Guarantor and such securities intermediary or commodity intermediary.

(h)     Borrowers and Guarantors are not the beneficiary or otherwise entitled to any right to payment under any letter of credit, banker’s acceptance or similar instrument as of the Effective Date, except as set forth in the Information Certificate.  In the event that any Borrower or Guarantor shall be entitled to or shall receive any right to payment under any letter of credit, banker’s acceptance or any similar instrument, whether as beneficiary thereof or otherwise after the Effective Date, such Borrower or Guarantor shall promptly notify Administrative Agent thereof in writing.  Such Borrower or Guarantor shall immediately, as Administrative Agent may specify, either (i) deliver, or cause to be delivered to Administrative Agent, with respect to any such letter of credit, banker’s acceptance or similar instrument, the written agreement of the issuer and any other nominated person obligated to make any payment in respect thereof (including any confirming or negotiating bank), in form and substance satisfactory to Administrative Agent, consenting to the assignment of the proceeds of the letter of credit to Administrative Agent by such Borrower or Guarantor and agreeing to make all payments thereon directly to Administrative Agent or as Administrative Agent may otherwise direct or (ii) cause Administrative Agent to become, at Borrowers’ expense, the transferee beneficiary of the letter of credit, banker’s acceptance or similar instrument (as the case may be).

(i)       Borrowers and Guarantors do not have any commercial tort claims in excess of $1,000,000 as of the Effective Date, except as set forth in the Information Certificate.  In the event that any Borrower or Guarantor shall at any time after the Effective Date have any commercial tort claims, such Borrower or Guarantor shall promptly notify Administrative Agent thereof in writing, which notice shall (i) set forth in reasonable detail the basis for and nature of such commercial tort claim and (ii) include the express grant by such Borrower or Guarantor to Administrative Agent of a security interest in such commercial tort claim (and the proceeds thereof).  In the event that such notice does not include such grant of a security interest, the sending thereof by such Borrower or Guarantor to Administrative Agent shall be deemed to constitute such grant to Administrative Agent. Upon the sending of such notice, any commercial tort claim described therein shall constitute part of the Collateral and shall be deemed included therein.  Without limiting the authorization of Administrative Agent provided in Section 5.2(a) hereof or otherwise arising by the execution by such Borrower or Guarantor of this Agreement or any of the other Financing Agreements, Administrative Agent is hereby irrevocably authorized from time to time and at any time to file such financing statements naming Administrative Agent or its designee as secured party and such Borrower or Guarantor as debtor, or any amendments to any financing statements, covering any such commercial tort claim as Collateral. In addition, each Borrower and Guarantor shall promptly upon Administrative Agent’s request, execute and deliver, or cause to be executed and delivered, to Administrative Agent such other agreements, documents and instruments as Administrative Agent may require in connection with such commercial tort claim.

(j)       Borrowers and Guarantors do not have any goods, documents of title or other Collateral in the custody, control or possession of a third party as of the Effective Date, except as set forth in the Information Certificate and except for goods located in the United States in transit to a location of a Borrower or Guarantor permitted herein in the ordinary course of business of such Borrower or Guarantor in the possession of the carrier transporting such goods.  In the event that any goods, documents of title or other Collateral are at any time after the Effective Date in the custody, control or possession of any other person not referred to in the Information Certificate or such carriers, Borrowers and Guarantors shall promptly notify Administrative Agent thereof in writing.  Promptly upon Administrative Agent’s request, Borrowers and Guarantors shall deliver to Administrative Agent a Collateral Access Agreement duly authorized, executed and delivered by such person and the Borrower or Guarantor that is the owner of such Collateral.

(k)     Borrowers and Guarantors shall take any other actions reasonably requested by Administrative Agent from time to time to cause the attachment, perfection and first priority of, and the ability of Administrative Agent to enforce, the security interest of Administrative Agent in any and all of the Collateral, including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC or other applicable law, to the extent, if any, that any Borrower’s or Guarantor’s signature thereon is required therefor, (ii) causing Administrative Agent’s name to be noted as secured party on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of Administrative Agent to enforce, the security interest of Administrative Agent in such Collateral, (iii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Administrative Agent to enforce, the security interest of Administrative Agent in such Collateral, (iv) obtaining the consents and approvals of any Governmental Authority or third party, including, without limitation, any consent of any licensor, lessor or other person obligated on Collateral, and taking all actions required by any earlier versions of the UCC or by other law, as applicable in any relevant jurisdiction.

(l)       Notwithstanding anything in this Agreement to the contrary, Administrative Agent may determine, with respect to any specific items of Collateral, not to perfect its security interest therein based on the de minimis value thereof relative to the costs associated with such perfection.

(a)     Each Borrower and Guarantor shall establish and maintain, at its expense, deposit account arrangements and merchant payment arrangements with the banks set forth on Schedule 8.10 to the Information Certificate and subject to Section 5.2(d) hereof such other banks as such Borrower or Guarantor may hereafter select.  The banks set forth on Schedule 8.10 to the Information Certificate constitute all of the banks with which Borrowers and Guarantors have deposit account arrangements and merchant payment arrangements as of the Effective Date and identifies each of the deposit accounts at such banks that are used solely for receiving store receipts from a retail store location of a Borrower (together with any other deposit accounts at any time established or used by any Borrower for receiving such store receipts from any retail store location, collectively, the “Store Accounts” and each individually, a “Store Account”) or otherwise describes the nature of the use of such deposit account by such Borrower.

(i)         Each Borrower shall deposit all proceeds from sales of Inventory in every form, including, without limitation, cash, checks, credit card sales drafts, credit card sales or charge slips or receipts and other forms of daily store receipts, from each retail store location of such Borrower (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Borrower used solely for such purpose in accordance with the current practices of such Borrower as of the Effective Date, but in any event no less frequently than (x) once every five (5) Business Days if Excess Availability is equal to or greater than $250,000,000, or (y) once every three (3) Business Days if Excess Availability is less than $250,000,000; except, that, Borrowers may have up to $12,500,000 in cash in the aggregate at all retail stores immediately after each deposit of funds from the stores into the applicable Store Accounts.  All such funds deposited into the Store Accounts shall be sent by wire transfer or other electronic funds transfer on each Business Day to the Blocked Accounts as provided in Section 6.3(a)(iii) below, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Borrower’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $12,500,000 at any one time, except  to the extent from time to time additional amounts may be held in the retail stores or the Store Accounts on Saturday, Sunday or other days where the applicable depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except  as Administrative Agent may otherwise agree; provided, that, the $12,500,000 amount referenced above shall be automatically increased if the aggregate number of retail store locations of Borrowers increases from the aggregate net number of retail store locations of Borrowers that exist on the date of this Agreement, by a pro rata amount based on such increase.

(ii)       Each Borrower shall establish and maintain a separate lockbox and related deposit account into which such Borrower shall promptly deposit, and shall direct each Fiscal Intermediary or other Third Party Payor in accordance with the applicable Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or Medicaid Accounts.  Such separate lockboxes and related deposit accounts shall only be used for purposes of receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Borrower; provided, that, (A) Borrowers shall authorize, direct and instruct the depository banks at which such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such lockboxes and related deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts or such bank account of Administrative Agent as Administrative Agent may from time to time designate for such purpose, which instructions by Borrowers to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and Administrative Agent and (B) any change in such instructions without the prior written consent of Administrative Agent shall be an Event of Default hereunder.

(iii)     Each Borrower shall establish and maintain, at its expense, deposit accounts with such banks as are reasonably acceptable to Administrative Agent (the “Blocked Accounts”) into which each Borrower shall promptly either cause all amounts on deposit in the Store Accounts of such Borrower to be sent as provided in Section 6.3(a)(i) above or shall itself deposit or cause to be deposited all proceeds of Receivables or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral (but not including payments of Medicare Accounts or Medicaid Accounts that are sent to the separate lockbox and related deposit accounts established pursuant to clause (ii) above).

(iv)     Borrowers and Guarantors shall deliver, or cause to be delivered to Administrative Agent a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2(d) hereof.  At any time a Default or an Event of Default shall exist or have occurred and be continuing, promptly upon Administrative Agent’s request, Borrowers and Guarantors shall deliver, or cause to be delivered, to Administrative Agent a Deposit Account Control Agreement duly authorized, executed and delivered by such banks where a Store Account is maintained as Administrative Agent shall specify.  Without limiting any other rights or remedies of Administrative Agent or Lenders, Administrative Agent may, at its option, instruct the depository banks at which the Blocked Accounts are maintained to transfer all available funds received or deposited into the Blocked Accounts to the Administrative Agent Payment Account at any time there is a Cash Dominion Event.  Without limiting any other rights or remedies of Administrative Agent or Lenders, in the event that a Deposit Account Control Agreement is in effect for a Store Account, then Administrative Agent may, at its option, instruct the depository bank at which the Store Account is maintained to transfer all available funds received or deposited into the Store Account to the Administrative Agent Payment Account at any time there is a Cash Dominion Event.  As to the Blocked Accounts or the Store Accounts, as the case may be, Administrative Agent shall send to Lead Borrower a copy of any such written instruction sent by Administrative Agent to the depository bank promptly thereafter.  In the event that at any time ninety (90) days after Administrative Agent has instructed such depository banks to transfer such funds to the Administrative Agent Payment Account, a Cash Dominion Event no longer exists, upon Lead Borrower’s written request received by Administrative Agent within five (5) Business Days after such Cash Dominion Event no longer exists, Administrative Agent shall rescind its prior instructions and give new instructions to such depository banks to transfer the funds on deposit in such accounts to such operating deposit account of Borrowers and Guarantors as Lead Borrower may specify in writing to Administrative Agent until such time as Administrative Agent is entitled to notify and shall notify the depository bank otherwise as provided above.  At all times that Administrative Agent shall have notified any depository bank to transfer funds from a Blocked Account or Store Account to the Administrative Agent Payment Account, all payments made to such Blocked Accounts or Store Accounts, whether in respect of the Receivables, as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Administrative Agent in respect of the Obligations and therefore shall constitute the property of Administrative Agent and Lenders to the extent of the then outstanding Obligations.

(b)     For purposes of calculating the amount of the Loans available to each Borrower, such payments will be applied (conditional upon final collection) to the Obligations on the Business Day of receipt by Administrative Agent of immediately available funds in the Administrative Agent Payment Account provided such payments and notice thereof are received in accordance with Administrative Agent’s usual and customary practices as in effect from time to time and within sufficient time to credit the applicable loan account on such day, and if not, then on the next Business Day.  For the purposes of calculating interest on the Obligations, such payments or other funds received will be applied (conditional upon final collection) to the Obligations on the Business Day of receipt of immediately available funds by Administrative Agent in the Administrative Agent Payment Account provided such payments or other funds and notice thereof are received in accordance with Administrative Agent’s usual and customary practices as in effect from time to time and within sufficient time to credit the applicable loan account on such day, and if not, then on the next Business Day.  In the event that at any time or from time to time there are no Loans outstanding or the amounts on deposit in the Blocked Accounts are not being remitted to the Administrative Agent Payment Account, Administrative Agent shall be entitled to an administrative fee in an amount calculated based on the Interest Rate for Eurodollar Rate Loans (on a per annum basis) then in effect multiplied by the amount of the funds received in the Blocked Account for such day in accordance with the customary practice of Administrative Agent. The economic benefit of the timing in the application of payments (and the administrative fee with respect thereto, if applicable) shall be for the sole benefit of Administrative Agent.

(c)     Each Borrower and Guarantor and their respective employees, agents and Subsidiaries shall, acting as trustee for Administrative Agent, receive, as the property of Administrative Agent, any monies, checks, notes, drafts or any other payment relating to and/or proceeds of Accounts or other Collateral which come into their possession or under their control and promptly upon receipt thereof, shall deposit or cause the same to be deposited in the Blocked Accounts, or remit the same or cause the same to be remitted, in kind, to Administrative Agent.  In no event shall the same be commingled with any Borrower’s or Guarantor’s own funds.  Borrowers agree to reimburse Administrative Agent on demand for any amounts owed or paid to any bank or other financial institution at which a Blocked Account or any other deposit account or investment account is established or any other bank, financial institution or other person involved in the transfer of funds to or from the Blocked Accounts arising out of Administrative Agent’s payments to or indemnification of such bank, financial institution or other person.  The obligations of Borrowers to reimburse Administrative Agent for such amounts pursuant to this Section 6.3 shall survive the termination of this Agreement.

(a)     All Obligations shall be payable to the Administrative Agent Payment Account as provided in Section 6.3 or such other place as Administrative Agent may designate from time to time.  Prior to the occurrence of an Event of Default, Administrative Agent shall apply payments received or collected from any Borrower or Guarantor or for the account of any Borrower or Guarantor (including the monetary proceeds of collections or of realization upon any Collateral) as follows:

(i)         first, to the payment in full of any fees, indemnities or expense reimbursements then due to Administrative Agent from any Borrower or Guarantor;

(ii)       second, ratably, to the payment in full of any fees, indemnities or expense reimbursements then due to Lenders and Issuing Bank from any Borrower or Guarantor;

(iii)     third, ratably, to the payment in full of interest due in respect of any Loans (and including any Special Administrative Agent Advances);

(iv)     fourth, to the payment in full of principal in respect of Special Administrative Agent Advances;

(v)       fifth, to the payment in full of principal in respect of the Swing Line Loans;

(vi)     sixth, ratably, to the payment in full of principal in respect of the Loans;

(vii)   seventh, ratably, to pay or prepay any other Obligations whether or not then due, in such order and manner as Administrative Agent determines or to be held as cash collateral in connection with any Letter of Credit Accommodations or other contingent Obligations (but not including for this purpose any Obligations arising under or pursuant to any Bank Products); and

(viii)   eighth, ratably, to pay or prepay any Obligations arising under or pursuant to Bank Products. 

(b)     On and after the occurrence of an Event of Default, Administrative Agent shall apply payments received or collected from any Borrower or Guarantor or for the account of any Borrower or Guarantor (including the monetary proceeds of collections or of realization upon any Collateral) as follows:

(i)         first, to the payment in full of any fees, indemnities or expense reimbursements then due to Administrative Agent from any Borrower or Guarantor;

(ii)       second, ratably, to the payment in full of any fees, indemnities or expense reimbursements then due to Lenders and Issuing Bank from any Borrower or Guarantor;

(iii)     third, ratably, to the payment in full of interest due in respect of any Loans (and including any Special Administrative Agent Advances) other than Tranche A-1 Revolving Loans and the Tranche A-2 Term Loans;

(iv)     fourth, to the payment in full of principal in respect of Special Administrative Agent Advances;

(v)       fifth, to the payment in full of principal in respect of the Swing Line Loans,

(vi)     sixth, ratably, to the payment in full of principal in respect of the Tranche A Revolving Loans and to be held as cash collateral in an amount equal to one hundred five (105%) percent of the Letter of Credit Accommodations,

(vii)   seventh, ratably, to the payment in full of interest due in respect of the Tranche A-1 Revolving Loans;

(viii)   eighth, ratably, to the payment in full of principal in respect of the Tranche A-1 Revolving Loans;

(ix)     ninth, ratably, to the payment in full of interest due in respect of the Tranche A-2 Term Loans; 

(x)       tenth, ratably, to the payment in full of principal in respect of the Tranche A-2 Term Loans;

(xi)     eleventh, to pay or prepay any other Obligations whether or not then due, in such order and manner as Administrative Agent determines or to be held as cash collateral in connection with any contingent Obligations, other than in respect of Letter of Credit Accommodations (but not including for this purpose any Obligations arising under or pursuant to any Bank Products) and

(xii)   twelfth, ratably, to pay or prepay any Obligations arising under or pursuant to Bank Products.

(c)     Notwithstanding anything to the contrary contained in this Agreement, (i) unless so directed by Lead Borrower, or unless a Default or an Event of Default shall exist or have occurred and be continuing, Administrative Agent shall not apply any payments which it receives to any Eurodollar Rate Loans, except (A) on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans or (B) in the event that there are no outstanding Base Rate Loans and (ii) to the extent any Borrower uses any proceeds of the Loans or Letter of Credit Accommodations to acquire rights in or the use of any Collateral or to repay any Indebtedness used to acquire rights in or the use of any Collateral, payments in respect of the Obligations shall be deemed applied first to the Obligations arising from Loans and Letter of Credit Accommodations that were not used for such purposes and second to the Obligations arising from Loans and Letter of Credit Accommodations the proceeds of which were used to acquire rights in or the use of any Collateral in the chronological order in which such Borrower acquired such rights in or the use of such Collateral.

(d)    At Administrative Agent’s option, all principal, interest, fees, costs, expenses and other charges provided for in this Agreement or the other Financing Agreements may be charged directly to the loan account(s) of any Borrower maintained by Administrative Agent.  Borrowers and Guarantors shall make all payments to Administrative Agent and Lenders on the Obligations free and clear of, and without deduction or withholding for or on account of, any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions, withholding, restrictions or conditions of any kind.  If after receipt of any payment of, or proceeds of Collateral applied to the payment of, any of the Obligations, Administrative Agent or any Lender is required to surrender or return such payment or proceeds to any Person for any reason, then the Obligations intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Agreement shall continue in full force and effect as if such payment or proceeds had not been received by Administrative Agent or such Lender.  Borrowers and Guarantors shall be liable to pay to Administrative Agent, and do hereby indemnify and hold Administrative Agent and Lenders harmless for the amount of any payments or proceeds surrendered or returned.  This Section 6.4(d) shall remain effective notwithstanding any contrary action which may be taken by Administrative Agent or any Lender in reliance upon such payment or proceeds.  This Section 6.4 shall survive the payment of the Obligations and the termination of this Agreement.

6.5               Authorization to Make Loans.  Administrative Agent and Lenders are authorized to make the Loans (including Swing Line Loans) and provide the Letter of Credit Accommodations based upon telephonic or other instructions received from anyone purporting to be the chief financial officer, vice president of finance, treasurer, assistant treasurer, director of finance, corporate treasurer, controller of Lead Borrower or other authorized person designated by any of such persons from time to time to Administrative Agent or, at the discretion of Administrative Agent, if such Revolving Loans are necessary to satisfy any Obligations.  All requests for Revolving Loans (including Swing Line Loans) or Letter of Credit Accommodations hereunder shall specify the date on which the requested advance is to be made or Letter of Credit Accommodations established (which day shall be a Business Day) and the amount of the requested Loan.  Requests received after 12:00 p.m. Boston time on any day shall be deemed to have been made as of the opening of business on the immediately following Business Day.  All Loans (including Swing Line Loans) and Letter of Credit Accommodations under this Agreement shall be conclusively presumed to have been made to, and at the request of and for the benefit of, any Borrower or Guarantor when deposited to the credit of any Borrower or Guarantor or otherwise disbursed or established in accordance with the instructions of any Borrower or Guarantor or in accordance with the terms and conditions of this Agreement.

(a)     Each Borrower hereby irrevocably appoints and constitutes Lead Borrower to request and receive Loans and Letter of Credit Accommodations pursuant to this Agreement and the other Financing Agreements from Administrative Agent or any Lender in the name or on behalf of such Borrower, to select the applicable Interest Rate for any such Loans or to take other actions contemplated as being taken by any Borrower under this Agreement or any of the other Financing Agreements.  Administrative Agent and Lenders may disburse the Loans to such bank account of Lead Borrower or a Borrower or otherwise make such Loans to a Borrower and provide such Letter of Credit Accommodations to a Borrower as Lead Borrower may designate or direct, without notice to any other Borrower or Obligor.  Notwithstanding anything to the contrary contained herein, Administrative Agent and Lead Borrower may at any time and from time to time require that Loans to or for the account of any Borrower be disbursed directly to an operating account of such Borrower.

(b)     Lead Borrower hereby accepts the appointment by Borrowers to act for and on behalf of the other Borrowers pursuant to this Section 6.7. Lead Borrower shall ensure that the disbursement of any Loans to each Borrower requested by or paid to or for the account of Parent, or the issuance of any Letter of Credit Accommodations for a Borrower hereunder, shall be paid to or for the account of such Borrower.

(c)     Each other Borrower and Guarantor hereby irrevocably appoints and constitutes Lead Borrower to receive statements on account and all other notices from Administrative Agent and Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Financing Agreements and any statements or notices sent to or received by Lead Borrower shall be deemed received by each of the other Borrowers and Guarantors.

(d)      Any notice, election, representation, warranty, agreement or undertaking by or on behalf of any other Borrower or any Guarantor by Lead Borrower shall be deemed for all purposes to have been made by such Borrower or Guarantor, as the case may be, and shall be binding upon and enforceable against such Borrower or Guarantor to the same extent as if made directly by such Borrower of Guarantor.

(e)     No purported termination of the appointment of Lead Borrower as agent as aforesaid shall be effective, except after ten (10) days’ prior written notice to Administrative Agent.

(a)     Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Administrative Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Administrative Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Lead Borrower and Administrative Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.

(b)     If any Lender (including Administrative Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Administrative Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders.  To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.

(c)     Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.

(d)    Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor.  If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Administrative Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.

(a)     In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between Administrative Agent and Lenders , Administrative Agent may, at its option, subject to the terms of this Section, make available, on behalf of Lenders, including the Swing Line Lender, the full amount of the Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Loans.

(b)     With respect to all Revolving Loans made by Administrative Agent on behalf of Lenders as provided in this Section, the amount of each Lender’s Pro Rata Share of the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. Boston time on the Business Day immediately preceding the date of each settlement computation; provided, that, Administrative Agent retains the absolute right at any time or from time to time to make theabove described adjustments at intervals more frequent than weekly, but in no event more than twice in any week.  With respect to Swing Line Loans made by Swing Line Lender (or Administrative Agent on behalf of Swing Line Lender), Swing Line Lender (or Administrative Agent on behalf of Swing Line Lender) may settle on the Swing Line Loans from time to time as it determines, but not less frequently than once each week.  Administrative Agent (or Swing Line Lender as to Swing Line Loans) shall deliver to each of the Tranche A Lenders and Tranche A-1 Lenders after the end of each week, or at such lesser period or periods as Administrative Agent (or Swing Line Lender as to Swing Line Loans) shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”).  If the summary statement is sent by Administrative Agent (or Swing Line Lender in the case of Swing Line Loans) and received by a Lender prior to 12:00 p.m. Boston time, then such Lender shall make the settlement transfer described in this Section by no later than 3:00 p.m. Boston time on the same Business Day and if received by a Lender after 12:00 p.m. Boston time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. Boston time on the next Business Day following the date of receipt.  If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Administrative Agent by wire transfer in immediately available funds the amount of the increase.  Alternatively, if the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease.  Each Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Swing Line Lender (or upon its request to Administrative Agent) by wire transfer in immediately available funds the amount of such Lender’s Pro Rata Share of the outstanding Swing Line Loans as set forth in the summary statement provided to such Lender as provided above.  Amounts transferred to Swing Line Lender (or Administrative Agent as the case may be) in respect to a settlement of Swing Line Loans shall be applied to the payment of the Swing Line Loans and shall constitute Tranche A Revolving Loans of such Lenders.  The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Administrative Agent.  Administrative Agent and each Lender agrees to mark its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving Loans and Letter of Credit Accommodations.  Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans to the extent such Revolving Loans have been funded by such Lender.  Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by Administrative Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Revolving Loans are so advanced to but excluding the date such Revolving Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section.

(c)     To the extent that Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower, Administrative Agent may apply such amounts repaid directly to any amounts made available by Administrative Agent pursuant to this Section.  In lieu of weekly or more frequent settlements, Administrative Agent may, at its option, at any time require each Lender to provide Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to Administrative Agent’s disbursement of such Revolving Loan to Borrower.  In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares.  No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Revolving Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Revolving Loan hereunder.

(d)    If Administrative Agent is not funding a particular Revolving Loan to or for the benefit of a Borrower pursuant to Sections 6.10(a) and 6.10(b) on any day, but is requiring each Lender to provide Administrative Agent with immediately available funds on the date of such Revolving Loan, Administrative Agent may assume that each Lender will make available to Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day.  If Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans.  During the period in which such Lender has not paid such corresponding amount to Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, the amount so advanced by Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by Administrative Agent for its own account. 

(e)     Upon any failure by a Lender to pay Administrative Agent (or Swing Line Lender) pursuant to the settlement described in Section 6.10(b) above or to pay Administrative Agent pursuant to Section 6.10(c) or 6.10(d), Administrative Agent shall promptly thereafter notify Lead Borrower of such failure and Borrowers shall pay such corresponding principal amount to Administrative Agent for its own account within five (5) Business Days of Administrative Borrower’s receipt of such notice.  The term “Defaulting Lender” shall mean (i) any Lender that has failed to fund any portion of the Loans, participations in Letter of Credit Accommodations or participations in Swing Line Loans required to be funded by it hereunder within two (2) Business Days of the date required to be funded by it hereunder, or has otherwise failed to pay over to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, and such failure has not been cured by the making of such funding or payment over to Administrative Agent or such Lender by such Lender within such two (2) Business Day period, unless such Lender notifies the Administrative Agent and Administrative Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied (except to the extent that such Lender may be required to make the payment hereunder notwithstanding the failure of a condition precedent), (ii) any Lender that has notified Administrative Agent, any Lender, Issuing Bank, or any Borrower or Guarantor in writing that it will not or does not intend to comply with any of its funding obligations under this Agreement (and such Lender has not retracted such notification in writing) or has made a public statement in writing to the effect that it will not or does not intend to comply with its funding obligations under this Agreement (and such Lender has not retracted such public statement in writing), unless such writing or statement indicates that such position is based on such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (iii) any Lender that becomes or is insolvent or has a parent company that has become or is insolvent or becomes the subject of a bankruptcy or insolvency proceeding, or has a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment and has not obtained all required orders, approvals or consents of any court or other Governmental Authority to continue to fulfill its obligations hereunder, in form and substance reasonably satisfactory to Administrative Agent and Administrative Borrower; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreement made with such Lender.

(f)      Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)         Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of Required Lenders, Required Tranche A Lenders, Required Tranche A-1 Lenders, Required Tranche A-2 Lenders and Supermajority Lenders.

(ii)       Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.1 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 6.4(d) shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swing Line Lender hereunder; third, to provide cash collateral for the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 6.10(i) below; fourth, as Lead Borrower may request (so long as no Default or Event of Default exists or has occurred and is continuing), to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and Lead Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Loans (including Swing Line Loans and Special Administrative Agent Advances) under this Agreement and (B) provide cash collateral for the benefit of Issuing Banks with respect to future Fronting Exposure of Issuing Banks; sixth, to the payment of any amounts owing to Lenders, the Issuing Banks or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default shall exist or have occurred and be continuing, to the payment of any amounts owing to Parent as a result of any judgment of a court of competent jurisdiction obtained by Parent against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (A) such payment is a payment of the principal amount of any Revolving Loans or Letter of Credit Accommodations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Revolving Loans were made or the related Letter of Credit Accommodations were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and Letter of Credit Accommodations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or Letter of Credit Accommodations owed to, such Defaulting Lender until such time as all Revolving Loans and funded and unfunded participations in Obligations in respect of Letter of Credit Accommodations and Swing Line Loans are held by the Tranche A Lenders pro rata in accordance with the Commitments without giving effect to Section 6.10(f)(iv) below.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to Section 6.10(i) below shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)     With respect to certain fees:

(A)   No Defaulting Lender shall be entitled to receive any unused line fee under Section 3.2(a) hereof for any period during which that Tranche A Lender or Tranche A-1 Lender is a Defaulting Lender (and Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).

(B)   Each Defaulting Lender that is a Tranche A Lender shall be entitled to receive letter of credit fees under Section 2.4(b) hereof for any period during which that Tranche A Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letter of Credit Accommodations for which it has provided cash collateral pursuant to Section 6.10(i) below. 

(C)   With respect to any unused line fee or letter of credit fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, Borrowers shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Obligations in respect of Letter of Credit Accommodations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to each Issuing Bank and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

(iv)     All or any part of such Defaulting Lender’s participation in Letter of Credit Accommodations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders who are Tranche A Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (A) the conditions set forth in Section 4.2 hereof are satisfied at the time of such reallocation (and, unless Borrowers shall have otherwise notified the Administrative Agent at such time, Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (B) such reallocation does not cause the aggregate outstanding Revolving Loans and participations in Letter of Credit Accommodations, Swing Line Loans and Special Administrative Agent Advances of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)     If the reallocation described in clause (iv) above cannot, or can only partially, be effected, Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, (A) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (B) second, provide cash collateral for the Issuing Banks’ Fronting Exposure in accordance with Section 6.10(i) below.

(g)     If Borrowers, Administrative Agent, Swing Line Lender and Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letter of Credit Accommodations and Swing Line Loans to be held pro rata by the Tranche A Lenders in accordance with the Tranche A Commitments (without giving effect to Section 6.10(a)(iv) above), whereupon such Lender will cease to be a Defaulting Lender; provided, that, (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and (ii) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(h)     So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit Accommodations unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

(i)       At any time that there shall exist a Defaulting Lender that is a Tranche A Lender, within one (1) Business Day following the written request of Administrative Agent or any Issuing Bank (with a copy to Administrative Agent), Borrowers shall provide cash collateral to secure the Fronting Exposure of the Issuing Banks with respect to such Defaulting Lender (determined after giving effect to Section 6.10(f)(iv) above and any cash collateral provided by such Defaulting Lender) in an amount not less than one hundred five (105%) percent of the Fronting Exposure of the Issuing Banks.

(i)         Borrowers, and to the extent provided by any Defaulting Lender that is a Tranche A Lender, such Defaulting Lender, hereby grants to, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such cash collateral as security for such Defaulting Lender’s obligation to fund participations in respect of Obligations in connection with Letter of Credit Accommodations, to be applied pursuant to clause (i)(ii) below.  If at any time Administrative Agent determines that such cash collateral is subject to any right or claim of any Person other than Administrative Agent and Issuing Banks as herein provided (other than liens permitted under Section 9.8 hereof), or that the total amount of such cash collateral is less than the amount specified above, Borrowers shall, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving effect to any cash collateral provided by the Defaulting Lender).

(ii)       Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under this Section in respect of Letter of Credit Accommodations shall be applied to the satisfaction of the Defaulting Lender’s (which is a Tranche A Lender) obligation to fund participations in respect of Obligations in connection with Letter of Credit Accommodations (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(iii)        Cash collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as cash collateral pursuant to this Section following (A) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (B) the determination by Administrative Agent and each Issuing Bank that there exists excess cash collateral; provided that, (1) the Person providing cash collateral and each Issuing Bank may agree that cash collateral shall be held to support future anticipated Fronting Exposure or other obligations and (2) to the extent that such cash collateral was provided by Borrowers, such cash collateral shall remain subject to the security interest granted pursuant to the Financing Agreements.

(j)       Lead Borrower and Administrative Agent shall have the right, but not the obligation, at any time that there is a Defaulting Lender, and upon the exercise by either Lead Borrower or Administrative Agent of such right, such Defaulting Lender shall have the obligation, to sell, assign and transfer to an Eligible Transferee designated by Lead Borrower and approved by Administrative Agent or designated by Administrative Agent after consultation with Lead Borrower, the Commitment of such Defaulting Lender and all rights and interests of such Defaulting Lender pursuant thereto.  Lead Borrower or Administrative Agent, as the case may be, shall provide the Defaulting Lender (and the Lead Borrower or the Administrative Agent as the case may be) with prior written notice of its intent to exercise its right under this Section, which notice shall specify the date on which such purchase and sale shall occur.  Such purchase and sale shall be pursuant to the terms of an Assignment and Acceptance (whether or not executed by the Defaulting Lender), except that on the date of such purchase and sale, the Eligible Transferee specified by Lead Borrower and approved by Administrative Agent or Administrative Agent, shall pay to the Defaulting Lender (except as Administrative Agent and such Defaulting Lender may otherwise agree) the amount equal to: (i) the principal balance of the Loans held by the Defaulting Lender outstanding as of the close of business on the Business Day immediately preceding the effective date of such purchase and sale, plus (ii) amounts accrued and unpaid in respect of interest and fees payable to the Defaulting Lender to the effective date of the purchase (but in no event shall the Defaulting Lender be deemed entitled to any early termination fee), minus (iii) the amount of the closing fee received by the Defaulting Lender pursuant to the terms hereof or of any of the other Financing Agreements multiplied by the fraction, the numerator of which is the number of months remaining in the then current term of the Credit Facility and the denominator of which is the number of months in the then current term thereof.  Such purchase and sale shall be effective on the date of the payment of such amount to the Defaulting Lender and the Commitment of the Defaulting Lender shall terminate on such date.

(k)     Nothing in this Section or elsewhere in this Agreement or the other Financing Agreements shall be deemed to require Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment.

. 

(a)     Any and all payments by or on account of any of the Obligations shall be made free and clear of and without deduction or withholding for or on account of, duties, taxes, levies, imposts, fees, deductions, charges or withholdings of any kind imposed by any Governmental Authority with respect to such payments, excluding (i) in the case of each Lender, Issuing Bank and Administrative Agent (A) duties, taxes, levies, imposts, fees, deductions, charges, or withholdings of any kind measured by its net income, and franchise taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender, Issuing Bank or Administrative Agent (as the case may be) is incorporated or otherwise organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located and (B) any United States withholding taxes payable with respect to payments under the Financing Agreements under laws (including any statute, treaty or regulation) in effect on the Effective Date (or, in the case of an Eligible Transferee, the date of the Assignment and Acceptance) applicable to such Lender, Issuing Bank or Administrative Agent, as the case may be, but not excluding any United States withholding taxes payable as a result of any change in such laws occurring after the Effective Date (or the date of such Assignment and Acceptance) (ii) in the case of each Lender, Issuing Bank or Administrative Agent, duties, taxes, levies, imposts, fees, deductions, charges or withholdings of any kind imposed on it as a result of a present or former connection between such Lender, Issuing Bank or Administrative Agent (as the case may be) and the jurisdiction imposing such duties, taxes, levies, imposts, fees, deductions, charges or withholdings but excluding any such connection arising from the activities of such Lender, Issuing Bank or Administrative Agent (as the case may be) pursuant to or in respect of this Agreement or any of the other Financing Agreements including but not limited to, executing delivering or performing its obligations or receiving a payment under or enforcing this Agreement or any of the other Financing Agreements and (iii) any United States federal withholding taxes imposed under FATCA (all such non-excluded duties, taxes, levies, imposts, fees, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”).

(b)     Subject to the second to last sentence of Section 6.11(g), if any Taxes shall be required by law to be deducted from or in respect of any sum payable in respect of the Obligations to any Lender, Issuing Bank or Administrative Agent (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 6.11), such Lender, Issuing Bank or Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the relevant Borrower or Guarantor shall make such deductions, (iii) the relevant Borrower or Guarantor shall pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable law and (iv) the relevant Borrower or Guarantor shall deliver to Administrative Agent evidence of such payment.

(c)     In addition, each Borrower and Guarantor agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any political subdivision thereof or any applicable foreign jurisdiction, and all liabilities with respect thereto, in each case arising from any payment made hereunder or under any of the other Financing Agreements or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any of the other Financing Agreements (collectively, “Other Taxes”).

(d)    Subject to the second to last sentence of Section 6.11(g), each Borrower and Guarantor shall indemnify each Lender, Issuing Bank and Administrative Agent for the full amount of Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this Section 6.11) paid by such Lender, Issuing Bank or Administrative Agent (as the case may be) and any liability (including for penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  This indemnification shall be made within thirty (30) days from the date such Lender, Issuing Bank or Administrative Agent (as the case may be) makes written demand therefor.  A certificate as to the amount of such payment or liability delivered to Lead Borrower by a Lender, an Issuing Bank (with a copy to Administrative Agent) or by Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.

(e)     As soon as practicable after any payment of Taxes or Other Taxes by any Borrower or Guarantor, such Borrower or Guarantor shall furnish to Administrative Agent, at its address referred to herein, the original or a certified copy of a receipt evidencing payment thereof.

(f)      Without prejudice to the survival of any other agreements of any Borrower or Guarantor hereunder or under any of the other Financing Agreements, the agreements and obligations of such Borrower or Guarantor contained in this Section 6.11 shall survive the termination of this Agreement and the payment in full of the Obligations. 

(g)     Any Foreign Lender shall, on the date it becomes a party to this Agreement (whether as an assignee of an interest under this Agreement pursuant to Sections 13.7(a) or 13.7(f) or otherwise), or upon any change in its lending office, deliver to Lead Borrower and Administrative Agent:  (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming exemption from, or a reduction to, withholding tax under an income tax treaty, or any successor form, (ii) duly completed copies of Internal Revenue Service Form W-8ECI claiming exemption from withholding because the income is effectively connection with a U.S. trade or business or any successor form, (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 871(h) or 881(c) of the Code, (A) a certificate of the Lender to the effect that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code or a “controlled foreign corporation” described and Section 881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form W-8BEN claiming exemption from withholding under the portfolio interest exemption or any successor form or (iv) any other applicable form, certificate or document prescribed by applicable law as a basis for claiming exemption from or a reduction in United States withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit a Borrower to determine the withholding or deduction required to be made.  Unless Lead Borrower and Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder or under any of the other Financing Agreements to or for a Foreign Lender are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, Borrowers, Guarantors or Administrative Agent shall withhold amounts required to be withheld by applicable requirements of law from such payments at the applicable statutory rate.  Borrowers and Guarantors shall not be required to indemnify any Foreign Lender or to pay any additional amounts to any Foreign Lender in respect of U.S. withholding tax pursuant Section 6.11(b) or 6.11(d) above to the extent that the obligation to pay such additional amounts would not have arisen but for a failure by such Foreign Lender to comply with the provisions of this Section 6.11(g).  Should a Lender become subject to Taxes because of its failure to deliver a form required hereunder, Borrowers and Guarantors shall, at such Lender’s expense, take such steps as such Lender shall reasonably request to assist such Lender to recover such Taxes.

(h)     Any Lender claiming any additional amounts payable pursuant to this Section 6.11 shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its applicable lending office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that would be payable or may thereafter accrue and would not, in the sole determination of such Lender, be otherwise disadvantageous in any material respect to such Lender.

(i)       If the Borrowers or Guarantors pay any additional amount pursuant to this Section 6.11 with respect to any Lender, such Lender shall use reasonable efforts to obtain a refund of tax or credit against its tax liabilities on account of such payment; provided  that, such Lender shall have no obligation to use such reasonable efforts to obtain a credit if it is in an excess foreign tax credit position and shall have no obligation to use such reasonable efforts if it believes in good faith that claiming a refund or credit would cause adverse tax consequences to it.  In the event that such Lender receives such a refund or credit, such Lender shall pay to the Borrowers or Guarantors an amount that such Lender reasonably determines is equal to the net tax benefit obtained by such Lender as a result of such payment by the Borrowers or Guarantors, as applicable, so as to leave such Lender in no worse position that in which it would have been in if payment of the relevant additional amount had not been made.  Nothing contained in this Section 6.11(i) shall require a Lender to disclose or detail the basis of its calculation of the amount of any tax benefit or any other amount or the basis of its determination referred to in the proviso to the first sentence of this Section 6.11(j) to the Borrowers, Guarantors or any other party.

(j)       If a payment made to Administrative Agent or a Lender under any Financing Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if Administrative Agent or such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), Administrative Agent or such Lender shall deliver to Lead Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Lead Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Lead Borrower or Administrative Agent as may be necessary for Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine, as applicable, that Administrative Agent or such Lender has complied with Administrative Agent’s or such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (j), the term “FATCA” shall include any amendments to FATCA after the date of this Agreement.

(a)     Borrowers shall provide Administrative Agent with the following documents in a form reasonably satisfactory to Administrative Agent:

(i)        as soon as possible after the end of each fiscal four (4) week period of Borrowers and Guarantors determined in accordance with the current accounting practices of Borrowers and Guarantors as of the Effective Date (but in any event within ten (10) Business Days after the end thereof), or weekly (but in any event by no later than Wednesday of each week) at any time that Excess Availability is less than an amount equal to fifteen (15%) percent of the Total Borrowing Base (and in such event the delivery of Borrowing Base Certificates on a weekly basis shall continue for not less than four (4) consecutive weeks), or more frequently as Administrative Agent may request at any time that a Default or Event of Default shall exist or have occurred, a Borrowing Base Certificate setting forth the calculation of each of the Tranche A Borrowing Base, Tranche A-1 Borrowing Base and Tranche A-2 Borrowing Base as of the last Business Day of the immediately preceding period as to the Accounts, Inventory, Prescription Files, unaffixed Tax Stamps, Equipment, Rolling Stock and Real Property duly completed and executed by the chief financial officer, vice president of finance, corporate treasurer or controller of Parent, together with all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed (including a recap of all Accounts created, collections received and credit memos issued for the immediately preceding period);

(ii)        the reports set forth on Schedule 7.1.

(b)     Nothing contained in any Borrowing Base Certificate shall be deemed to limit, impair or otherwise affect the rights of Administrative Agent contained herein and in the event of any conflict or inconsistency between the calculation of the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base or the Tranche A-2 Borrowing Base as set forth in any Borrowing Base Certificate and as determined by Administrative Agent in good faith, the determination of Administrative Agent shall govern and be conclusive and binding upon Borrowers and Guarantors. Without limiting the foregoing, Borrowers shall furnish to Administrative Agent any information which Administrative Agent may reasonably request regarding the determination and calculation of any of the amounts set forth in any Borrowing Base Certificate.  Each of the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base or the Tranche A-2 Borrowing Base may be adjusted based on the information set forth in the reports received by Administrative Agent under this Section 7.1.  If any Borrower’s or Guarantor’s records or reports of the Collateral are prepared or maintained by an accounting service, contractor, shipper or other agent, such Borrower and Guarantor hereby irrevocably authorizes such service, contractor, shipper or agent to deliver such records, reports, and related documents to Administrative Agent and to follow Administrative Agent’s instructions with respect to further services at any time that an Event of Default exists or has occurred and is continuing.

(a)     Borrowers shall notify Administrative Agent promptly of: (i) any material delay in any Borrower’s or performance of any of its material obligations to any Account Debtor or the assertion of any material claims, offsets, defenses or counterclaims by any Account Debtor, or any material disputes with Account Debtors, or any settlement, adjustment or compromise thereof, (ii) all material adverse information known to any Borrower or Guarantor relating to the financial condition of any Account Debtor reasonably likely to adversely impact the collectability or enforceability of an Account, (iii) any event or circumstance which, to the best of any Borrower’s or Guarantor’s knowledge, would cause Administrative Agent to consider any then existing material Accounts as no longer constituting Eligible Accounts, (iv) any notice of a material default by any Borrower under any of the Credit Card Agreements or of any default which might result in the Credit Card Issuer or Credit Card Processor ceasing to make payments or suspending payments to any Borrower, (v) any notice from any Credit Card Issuer or Credit Card Processor that such person is ceasing or suspending, or will cease or suspend, any present or future payments due or to become due to any Borrower from such person, or that such person is terminating or will terminate any of the Credit Card Agreements, and (vi) the failure of any Borrower to comply with any material terms of the Credit Card Agreements or any terms thereof which might result in the Credit Card Issuer or Credit Card Processor ceasing or suspending payments to any Borrower.  No credit, discount, allowance or extension or agreement for any of the foregoing in excess of $100,000 shall be granted to any Account Debtor without Administrative Agent’s consent, except in the ordinary course of a Borrower’s or Guarantor’s business in accordance with its practices and policies previously disclosed in writing to Administrative Agent and except as set forth in the schedules delivered to Administrative Agent pursuant to Section 7.1(a) above.  So long as no Event of Default exists or has occurred and is continuing, Borrowers and Guarantors shall settle, adjust or compromise any claim, offset, counterclaim or dispute with any Account Debtor.  At any time that an Event of Default exists or has occurred and is continuing, Administrative Agent shall, at its option, have the exclusive right to settle, adjust or compromise any claim, offset, counterclaim or dispute with Account Debtors or grant any credits, discounts or allowances.

(b)     With respect to each Account: (i) the amounts shown on any invoice delivered to Administrative Agent or schedule thereof delivered to Administrative Agent shall be true and complete in all material respects, (ii) no payments shall be made thereon except payments immediately delivered to Blocked Accounts (or other deposit accounts in the case of Medicare Accounts and Medicaid Accounts identified to Administrative Agent that are used exclusively for handling payments or other remittances in respect of such Accounts), in each

case, maintained in accordance with the terms of this Agreement, (iii) no credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any Account Debtor except as reported to Administrative Agent in accordance with this Agreement and except for credits, discounts, allowances or extensions made or given in the ordinary course of each Borrower’s business in accordance with practices and policies previously disclosed to Administrative Agent, (iv) there shall be no setoffs, deductions, contras, defenses, counterclaims or disputes existing or asserted with respect thereto except as reported to Administrative Agent in accordance with the terms of this Agreement, (v) none of the transactions giving rise thereto will violate any applicable foreign, Federal, State or local laws or regulations, all documentation relating thereto will be legally sufficient under such laws and regulations and all such documentation will be legally enforceable in accordance with its terms.

(c)     No Borrower or Guarantor shall purchase goods from suppliers and deliver goods that give rise to Military Receivables, except Grocery Supply Acquisition Corp. and Nash Finch, provided, that, Lead Borrower may, subject to and in accordance with the terms hereof, establish a separate subsidiary that is only engaged in the business of purchasing goods from suppliers and delivering goods giving rise to Military Receivables, provided, that, such separate subsidiary or subsidiaries shall be a Borrower hereunder and shall satisfy all of the requirements of Section 9.24, including the execution and delivery of such agreements and documents as Administrative Agent may reasonably request in connection therewith.

(d)    Administrative Agent shall have the right at any time or times, in Administrative Agent’s name or in the name of a nominee of Administrative Agent, to verify the validity, amount or any other matter relating to any Receivables or other Collateral, by mail, telephone, facsimile transmission or otherwise.

7.8               Right to Cure.  Administrative Agent may, at its option, upon notice to Lead Borrower, (a) cure any default by any Borrower or Guarantor under any material agreement with a third party that affects the Collateral, its value or the ability of Administrative Agent to collect, sell or otherwise dispose of the Collateral or the rights and remedies of Administrative Agent or any Lender therein or the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the other Financing Agreements, (b) pay or bond on appeal any judgment entered against any Borrower or Guarantor, (c) discharge taxes, liens, security interests or other encumbrances at any time levied on or existing with respect to the Collateral and pay any amount, incur any expense or perform any act which, in Administrative Agent’s good faith judgment, is necessary or appropriate to preserve, protect, insure or maintain the Collateral and the rights of Administrative Agent and Lenders with respect thereto.  Administrative Agent may add any amounts so expended to the Obligations and charge any Borrower’s account therefor, such amounts to be repayable by Borrowers on demand.  Administrative Agent and Lenders shall be under no obligation to effect such cure, payment or bonding and shall not, by doing so, be deemed to have assumed any obligation or liability of any Borrower or Guarantor.  Any payment made or other action taken by Administrative Agent or any Lender under this Section shall be without prejudice to any right to assert an Event of Default hereunder and to proceed accordingly.

Each Borrower and Guarantor hereby represents and warrants to Administrative Agent and Lenders the following (which shall survive the execution and delivery of this Agreement), the truth and accuracy of which are a continuing condition of the making of Loans and providing Letter of Credit Accommodations to Borrowers:

(a)     The exact legal name as of the Effective Date of each Borrower and Guarantor is as set forth on the signature page of this Agreement and in the Information Certificate.  No Borrower or Guarantor has, during the five years prior to the date of this Agreement, been known by or used any other corporate or fictitious name or been a party to any merger or consolidation, or acquired all or substantially all of the assets of any Person, or acquired any of its property or assets out of the ordinary course of business, except as set forth in the Information Certificate.

(b)     Each Borrower and Guarantor is as of the Effective Date an organization of the type and organized in the jurisdiction set forth in the Information Certificate.  The Information Certificate accurately sets forth the organizational identification number of each Borrower and Guarantor or accurately states that such Borrower or Guarantor has none and accurately sets forth the federal employer identification number of each Borrower and Guarantor, in each case, as of the Effective Date.

(c)     The chief executive office and mailing address of each Borrower and Guarantor and each Borrower’s and Guarantor’s Records concerning Accounts are located only at the address identified as such in Schedule 8.2 to the Information Certificate and its only other places of business and the only other locations of Collateral not in transit to the extent permitted herein, if any, are the addresses set forth in Schedule 8.2 to the Information Certificate, subject to the rights of any Borrower or Guarantor to establish new locations in accordance with Section 9.2 below.  The Information Certificate correctly identifies any of such locations which as of the Effective Date are not owned by a Borrower or Guarantor and sets forth the owners and/or operators thereof.

.  All financial statements relating to any Borrower or Guarantor which have been or may hereafter be delivered by any Borrower or Guarantor to Administrative Agent and Lenders have been prepared in accordance with GAAP (except as to any interim financial statements, to the extent such statements are subject to normal year-end adjustments and do not include any notes) and fairly present in all material respects the financial condition and the results of operation of such Borrower and Guarantor at the dates and for the periods set forth therein.  Except as disclosed in any interim financial statements furnished by Borrowers and Guarantors to Administrative Agent prior to the date of this Agreement, as of the Effective Date, there has been no act, condition or event which has had or is reasonably likely to have a Material Adverse Effect since the date of the most recent audited financial statements of any Borrower or Guarantor furnished by any Borrower or Guarantor to Administrative Agent prior to the date of this Agreement.

.  The security interests and liens granted to Administrative Agent under this Agreement and the other Financing Agreements constitute a valid perfected first priority (subject to Section 4.1(e)) security interest in all of the Collateral, subject only to the liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof.  Each Borrower and Guarantor has good and marketable fee simple title to or valid leasehold interests in all of its Real Property and good, valid and merchantable title to all of its other properties and assets subject to no liens, mortgages, pledges, security interests, encumbrances or charges of any kind, except those granted to Administrative Agent and such others as are specifically listed on Schedule 8.4 to the Information Certificate or permitted under Section 9.8 hereof.

.  Each Borrower and Guarantor has filed, or caused to be filed, in a timely manner all material tax returns, reports and declarations which are required to be filed by it.  All information in such tax returns, reports and declarations is complete and accurate in all material respects.  Each Borrower and Guarantor has paid or caused to be paid all material taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or Guarantor and with respect to which adequate reserves have been set aside on its books.  Adequate provision has been made for the payment of all material accrued and unpaid Federal, State, county, local, foreign and other taxes whether or not yet due and payable and whether or not disputed.

.  Except as set forth on Schedule 8.6 to the Information Certificate, (a) there is no investigation by any Governmental Authority pending, or to the best of any Borrower’s or Guarantor’s knowledge threatened, against or affecting any Borrower or Guarantor, or its or their assets or business and (b) there is no action, suit, proceeding or claim by any Person pending, or to the best of any Borrower’s or Guarantor’s knowledge threatened, against any Borrower or Guarantor or its or their assets or goodwill, or against or affecting any transactions contemplated by this Agreement, in each case, which if adversely determined against such Borrower or Guarantor has or could reasonably be expected to have a Material Adverse Effect.

(a)     Borrowers and Guarantors are not in default in any respect under, or in violation in any respect of the terms of, any agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound where such default or violation has or could reasonably be expected to have a Material Adverse Effect.  Borrowers and Guarantors are in compliance with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority relating to their respective businesses, including, without limitation, those set forth in or promulgated pursuant to the Occupational Safety and Health Act of 1970, as amended, the Fair Labor Standards Act of 1938, as amended, ERISA, the Code, as amended, and the rules and regulations thereunder, and all Environmental Laws where the failure to so comply has or could reasonably be expected to have a Material Adverse Effect.

(b)       Borrowers and Guarantors have obtained all permits, licenses, approvals, consents, certificates, orders or authorizations of any Governmental Authority required for the lawful conduct of its business (the “Permits”) where the failure to have such Permits has or could reasonably be expected to have a Material Adverse Effect.  All of the material Permits are valid and subsisting and in full force and effect.  Except as set forth on Schedule 8.8 of the Information Certificate, there are no actions, claims or proceedings pending or to the best of any Borrower’s or Guarantor’s knowledge, threatened that seek the revocation, cancellation, suspension or modification of any of the material Permits.

(a)     Except as set forth on Schedule 8.8 to the Information Certificate, Borrowers, Guarantors and any Subsidiary of any Borrower or Guarantor have not generated, used, stored, treated, transported, manufactured, handled, produced or disposed of any Hazardous Materials, on or off its premises (whether or not owned by it) in any manner that violates any applicable Environmental Law or Permit where such violation has or could reasonably be expected to have a Material Adverse Effect.

(b)     Except as set forth on Schedule 8.8 to the Information Certificate, there has been no, and  to the best of any Borrower’s or Guarantor’s knowledge there is no pending or threatened, investigation by any Governmental Authority or any proceeding, complaint, order, directive, claim, citation or notice by any Governmental Authority or any other person with respect to any non‑compliance with or violation of the requirements of any Environmental Law by any Borrower or Guarantor and any Subsidiary of any Borrower or Guarantor or the release, spill or discharge, threatened or actual, of any Hazardous Material or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials or any other environmental, health or safety matter, which has or could reasonably be expected to have a Material Adverse Effect.

(c)     Except as set forth on Schedule 8.8 to the Information Certificate, as of the Effective Date, Borrowers, Guarantors and their Subsidiaries have no material liability (contingent or otherwise) in connection with a release, spill or discharge, threatened or actual, of any Hazardous Materials or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials.

(a)     Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or State law; (ii) each Borrower and its ERISA Affiliates have made all required contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan; (iii) no Plan has been terminated so as to incur any material liability to the Pension Benefit Guaranty Corporation and there has been no occurrence of a reportable event or any other event or condition which presents a material risk of termination by the Pension Benefit Guaranty Corporation of any such Plan that is a single employer plan, which termination could result in any material liability to the Pension Benefit Guaranty Corporation; and (iv) there does not exist any accumulated funding deficiency, whether or not waived, with respect to any such Plan.

(b)     Except as set forth on Schedule 8.9, as of the Effective Date each Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service and to the best of any Borrower’s or Guarantor’s knowledge, nothing has occurred which would cause the loss of such qualification.  

(c)     Except as set forth on Schedule 8.9, (i) as of the Effective Date, there are no pending, or to the best of any Borrower’s or Guarantor’s knowledge, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan and (ii) there has been no non-exempt prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has in either case resulted or could reasonably be expected to result in a Material Adverse Effect.

(d)    Except as set forth on Schedule 8.9 or except as has not or could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) the current value of each Plan’s assets (determined in accordance with the assumptions used for funding such Plan pursuant to Section 412 of the Code) are not less than such Plan’s liabilities under Section 4001(a)(16) of ERISA (provided, that, any underfunding set forth on Schedule 8.9 has not, as of the Effective Date, given rise to the requirement that any additional minimum funding payments be made except as disclosed therein); (iii) each Borrower and Guarantor, and their ERISA Affiliates, have not incurred and do not reasonably expect to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) each Borrower and Guarantor, and their ERISA Affiliates, have not incurred and do not reasonably expect to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) each Borrower and Guarantor, and their ERISA Affiliates, have not engaged in a transaction that would be subject to Section 4069 or 4212(c) of ERISA.

(a)     Each Borrower and Guarantor owns or licenses or otherwise has the right to use all Intellectual Property reasonably necessary for the operation of its business as presently conducted.  As of the Effective Date, Borrowers and Guarantors do not have any Intellectual Property registered, or subject to pending applications, in the United States Patent and Trademark Office or any similar office or agency in the United States, any State thereof, any political subdivision thereof or in any other country, other than those described in Schedule 8.11 to the Information Certificate and has not granted any licenses with respect thereto other than as set forth in Schedule 8.11 to the Information Certificate.  No event has occurred which permits or would permit after notice or passage of time or both, the revocation, suspension or termination of such rights where any such event has or could reasonably be expected to have a Material Adverse Effect. 

(b)     To the best of any Borrower’s or Guarantor’s knowledge, no slogan or other advertising device, product, process, method, substance or other Intellectual Property or goods bearing or using any Intellectual Property presently contemplated to be sold by or employed by any Borrower or Guarantor infringes in any material respect as to any patent, trademark, servicemark, tradename, copyright, license or other Intellectual Property owned by any other Person presently and no claim or litigation is pending or, to the best of any Borrower’s or Guarantor’s knowledge, threatened against or affecting any Borrower or Guarantor contesting its right to sell or use any such Intellectual Property where any such infringements, claims or litigation have or could reasonably be expected to have a Material Adverse Effect.  Schedule 8.11 to the Information Certificate sets forth all of the agreements or other arrangements of each Borrower and Guarantor pursuant to which such Borrower or Guarantor has a license or other right to use any trademarks, logos, designs, representations or other Intellectual Property owned by another person as in effect on the Effective Date and the dates of the expiration of such agreements or other arrangements of such Borrower or Guarantor as in effect on the Effective Date (collectively, together with such agreements or other arrangements as may be entered into by any Borrower or Guarantor after the Effective Date, collectively, the “License Agreements” and individually, a “License Agreement”).  No trademark, servicemark, copyright or other Intellectual Property at any time used by any Borrower or Guarantor which is owned by another person, or owned by such Borrower or Guarantor subject to any security interest, lien, collateral assignment, pledge or other encumbrance in favor of any person other than Administrative Agent, is affixed to any Eligible Inventory, except (a) to the extent permitted under the term of the license agreements listed on Schedule 8.11 to the Information Certificate and (b) to the extent the sale of Inventory to which such Intellectual Property is affixed is permitted to be sold by such Borrower or Guarantor under applicable law (including the United States Copyright Act of 1976).

(a)     Each Borrower and Guarantor does not have any direct or indirect Subsidiaries or Affiliates and is not engaged in any joint venture or partnership except as set forth in Schedule 8.12 to the Information Certificate and except to the extent permitted after the Effective Date under Section 9.10 hereof.

(b)     Each Borrower and Guarantor is the record and beneficial owner of all of the issued and outstanding shares of Capital Stock of each of the Subsidiaries listed on Schedule 8.12 to the Information Certificate as being owned by such Borrower or Guarantor and as may be permitted after the Effective Date under Section 9.10 hereof.

(c)       The issued and outstanding shares of Capital Stock of each Borrower (other than Parent) and Guarantor are directly and beneficially owned and held by the persons indicated in the Information Certificate, and in each case all of such shares of Borrowers (other than Parent) and Guarantors have been duly authorized and are fully paid and non-assessable, free and clear of all claims, liens, pledges and encumbrances of any kind, except as disclosed in Schedule 8.12 of the Information Certificate or as otherwise disclosed in Administrative Agent in writing prior to the Effective Date.

(d)    Borrowers and Guarantors (taken as a whole) are and will continue to be Solvent after the creation of the Obligations, the security interests of Administrative Agent and the other transactions contemplated hereunder.

(a)     Set forth on Schedule 8.13 to the Information Certificate is a list (including dates of termination) of all collective bargaining or similar agreements between or applicable to each Borrower and Guarantor and any union, labor organization or other bargaining agent in respect of the employees of any Borrower or Guarantor on the Effective Date.

(b)     There is  no significant unfair labor practice complaint pending against any Borrower or Guarantor or, to the best of any Borrower's or Guarantor’s knowledge, threatened against it, before the National Labor Relations Board, and no significant grievance or significant arbitration proceeding arising out of or under any collective bargaining agreement is pending on the Effective Date against any Borrower or Guarantor or, to best of any Borrower's or Guarantor’s knowledge, threatened against it which has or could reasonably be expected to have a Material Adverse Effect, and  no significant strike, labor dispute, slowdown or stoppage is pending against any Borrower or Guarantor or, to the best of any Borrower's or Guarantor’s knowledge, threatened against any Borrower or Guarantor which has or could reasonably be expected to have a Material Adverse Effect.

(a)     To the extent that and for so long as any Borrower or Guarantor is a “covered entity” within the meaning of HIPAA, such Borrower or Guarantor (i) has undertaken or will promptly undertake all appropriate surveys, audits, inventories, reviews, analyses and/or assessments (including any necessary risk assessments) of all areas of its business and operations required by HIPAA; (ii)  has developed, and to the extent becoming a “covered entity” after the Effective Date, will promptly develop within the time period required under the applicable statutes and regulations, an appropriate plan and time line for becoming HIPAA Compliant (a “HIPAA Compliance Plan”); and (iii) has implemented, and to the extent becoming a “covered entity” after the Effective Date, will promptly implement within the time period required under the applicable statutes and regulations,  those provisions of such HIPAA Compliance Plan in all material respects necessary to ensure that such Borrower or Guarantor  is or becomes HIPAA Compliant.

(b)     For purposes hereof, “HIPAA Compliant’ shall mean that a  Borrower or Guarantor (i) is or will be in compliance in all material respects with each of the applicable requirements of the so-called “Administrative Simplification” provisions of HIPAA on and as of each date that any part thereof, or any final rule or regulation thereunder, becomes effective in accordance with its or their terms, as the case may be (each such date, a “HIPAA Compliance Date”) and (ii) is not and could not reasonably be expected to become, as of any date following any such HIPAA Compliance Date, the subject of any civil or criminal penalty, process, claim, action or proceeding, or any administrative or other regulatory review, survey, process or proceeding (other than routine surveys or reviews conducted by any government health plan or other accreditation entity) that could result in any of the foregoing or that has or could reasonably be expected to have a Material Adverse Effect.

(c)     Schedule 8.17 hereto sets forth a complete list of all “business associate agreements” (as such term is defined in HIPAA) that any Borrower or Guarantor has entered into with any person as of the Effective Date.

(a)     Each Borrower and Guarantor is in compliance in all material respects with all applicable Health Care Laws, including all Medicare and Medicaid program rules and regulations applicable to them.  Without limiting the generality of the foregoing, no Borrower or Guarantor has received written notice by a Governmental Authority of any violation of any provisions of the Medicare and Medicaid Anti-Fraud and Abuse or Anti-Kickback Amendments of the Social Security Act (presently codified in Section 1128(B)(b) of the Social Security Act) or the Medicare and Medicaid Patient and Program Protection Act of 1987.

(b)     Each Borrower and Guarantor has maintained in all material respects all records required to be maintained by the Joint Commission on Accreditation of Healthcare Organizations, the Food and Drug Administration, Drug Enforcement Agency and State Boards of Pharmacy and the Federal and State Medicare and Medicaid programs as required by the Health Care Laws each Borrower and Guarantor and has all necessary permits, licenses, franchises, certificates and other approvals or authorizations of Governmental Authority as are required under applicable Health Care Laws.

(c)     Each Borrower and Guarantor who is a Certified Medicare Provider or Certified Medicaid Provider has in a timely manner filed all requisite cost reports, claims and other reports required to be filed in connection with all Medicare and Medicaid programs due on or before the Effective Date, all of which are complete and correct in all material respects. There are no known claims, actions or appeals pending before any Third Party Payor or Governmental Authority, including without limitation, any Fiscal Intermediary, the Provider Reimbursement Review Board or the Administrator of the Centers for Medicare and Medicaid Services, with respect to any Medicare or Medicaid cost reports or claims filed by any Borrower or Guarantor on or before the Effective Date. To the best of each Borrower’s and each Guarantor’s knowledge, there currently exist no restrictions, deficiencies, required plans of correction actions or other such remedial measures with respect to Federal and State Medicare and Medicaid certifications or licensure.

(d)    Schedule 8.18 hereto sets forth an accurate, complete and current list of all participation agreements of any Borrower or Guarantor with health maintenance organizations, insurance programs, preferred provider organizations and other Third Party Payors and all such agreements are in full force and effect and no material default exists thereunder.

(a)     Each Borrower has not, within the one (1) year period prior to the Effective Date, received any written notice pursuant to the applicable provisions of the PSA, PACA, the Food Security Act, the UCC or any other applicable local laws from (i) any Farm Products Seller or (ii) any lender to any Farm Products Seller or any other Person with a security interest in the assets of any Farm Products Seller or (iii) the Secretary of State (or equivalent official) or other Governmental Authority of any State, Commonwealth or political subdivision thereof in which any Farm Products purchased by such Borrower are produced, in any case advising or notifying such Borrower of the intention of such Farm Products Seller or other Person to preserve the benefits of any trust applicable to any assets of any Borrower established in favor of such Farm Products Seller or other Person under the provisions of any law or claiming a security interest in or lien upon or other claim or encumbrance with respect to any perishable agricultural commodity or any other Farm Products which may be or have been purchased by a Borrower or any related or other assets of such Borrower (all of the foregoing, together with any such notices as any Borrower may at any time hereafter receive, collectively, the “Food Security Act Notices”).

(b)     No Borrower is a “live poultry dealer” (as such term is defined in the PSA) or otherwise purchases or deals in live poultry of any type whatsoever.  Borrowers and Guarantors do not purchase livestock pursuant to cash sales as such term is defined in the PSA. Each Borrower is not engaged in, and shall not engage in, raising, cultivating, propagating, fattening, grazing or any other farming, livestock or aquacultural operations.

8.21           Pharmaceutical Laws.  

(a)     Borrowers and Guarantors have obtained all permits, licenses and other authorizations which are required with respect to the ownership and operations of their business under any Pharmaceutical Law, except where the failure to obtain such permits, licenses or other authorizations would not reasonably be expected to have a Material Adverse Effect.

(b)     Borrowers and Guarantors are in compliance with all terms and conditions of all such permits, licenses, orders and authorizations, and are also in compliance with all Pharmaceutical Laws, including all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in the Pharmaceutical Laws, except where the failure to comply with such terms, conditions or laws would not reasonably be expected to have a Material Adverse Effect.

(c)     No Borrower or Guarantor has any liabilities, claims against it or presently outstanding notices imposed or based upon any provision of any Pharmaceutical Law, except for such liabilities, claims, citations or notices which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.

(a)     No Borrower or Guarantor is engaged or will be engaged, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.  None of the proceeds of the Loans or Letter of Credit Accommodations shall be used directly or indirectly for the purpose of purchasing or carrying any margin stock, for the purpose of reducing or retiring any Indebtedness that was originally incurred to purchase or carry any margin stock or for any other purpose that might cause any of the Loans or Letter of Credit Accommodations to be considered a “purpose credit” within the meaning of Regulations T, U, or X issued by the FRB.

(b)     No Borrower or Guarantor, or any of their Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

8.25           Brokers.  No broker or finder brought about the obtaining, making or closing of the Loans, and no Borrower or Guarantor or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.

(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.

(a)     Each Borrower and Guarantor shall at all times (i) preserve, renew and keep in full force and effect its corporate or limited liability company existence and rights and franchises with respect thereto and (ii) maintain in full force and effect all licenses, trademarks, tradenames, approvals, authorizations, leases, contracts and Permits necessary to carry on the business as presently conducted or as conducted after the Effective Date, except as to any Borrower or Guarantor other than Parent as permitted in Section 9.7 hereto and except, as to clause (ii) only, where the failure to do so, individually or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect.

(b)     No Borrower or Guarantor shall change its name unless Administrative Agent shall have received not less than fifteen (15) days prior written notice from Lead Borrower of such proposed change in its corporate or limited liability company name, which notice shall accurately set forth the new name.  Lead Borrower shall, within one (1) Business Day of such name change, deliver to Administrative Agent a copy of the amendment to the Certificate of Incorporation or Articles of Incorporation (or Certificate of Formation or other organizational document as applicable) of such Borrower or Guarantor providing for the name change certified by the Secretary of State of the jurisdiction of incorporation or organization of such Borrower or Guarantor as soon as it is available.

(c)     No Borrower or Guarantor shall change its chief executive office or its mailing address or organizational identification number (or if it does not have one, shall not acquire one) unless Administrative Agent shall have received not less than thirty (30) days’ prior written notice from Lead Borrower of such proposed change, which notice shall set forth such information with respect thereto as Administrative Agent may in good faith require and Administrative Agent shall have received such agreements as Administrative Agent may reasonably require in connection therewith.  No Borrower or Guarantor shall change its type of organization, jurisdiction of organization or other legal structure, except as to any Borrower (other than Parent) to the extent permitted in Section 9.7 hereof and in any event after not less than thirty (30) days prior written notice to Administrative Agent.

(a)     Each Borrower and Guarantor shall, and shall cause any Subsidiary to, at all times, comply in all material respects with all laws, rules, regulations, licenses, approvals, orders and other Permits applicable to it and duly observe all requirements of any foreign, Federal, State or local Governmental Authority, including ERISA, the Code, the Occupational Safety and Health Act of 1970, as amended, the Fair Labor Standards Act of 1938, as amended, all Health Care Laws and all Environmental Laws where the failure to so comply has or could reasonably be expected to have a Material Adverse Effect.

(b)     Each Borrower and Guarantor shall give written notice to Administrative Agent promptly after any Borrower’s or Guarantor’s receipt of any notice of, or any Borrower’s or Guarantor’s otherwise obtaining knowledge of, (i) any release, spill or discharge, threatened or actual, of any Hazardous Material at or from its premises (whether or not owned by it) other than as permitted under any applicable Environmental Law  or other occurrence that constitutes a violation in any material respect of any Environmental Law at any such premises or (ii) any investigation, proceeding, complaint, order, directive, claims, citation or notice from or on behalf of any Governmental Authority with respect to: (A) any material non-compliance with or violation of any Environmental Law by any Borrower or Guarantor or (B) the release, spill or discharge, threatened or actual, of any Hazardous Material other than as permitted under any applicable Environmental Law. Upon the request of Administrative Agent, copies of all environmental surveys, audits, assessments, feasibility studies and results of remedial investigations shall be promptly furnished, or caused to be furnished, by such Borrower or Guarantor to Administrative Agent.  Each Borrower and Guarantor shall take prompt action to respond to any material non-compliance with any of the Environmental Laws and shall keep Administrative Agent reasonably informed regarding the status of such response; provided, that, no Borrower or Guarantor shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings diligently pursued and available to such Borrower or Guarantor and with respect to which adequate reserves have been set aside on its books in accordance with GAAP.

(c)     Without limiting the generality of the foregoing, whenever Administrative Agent reasonably determines that there is material non-compliance, or any condition that requires any action by or on behalf of any Borrower or Guarantor in order to avoid any material non‑compliance, with any Environmental Law, Borrowers shall, at Administrative Agent’s request and Borrowers’ expense: (i) cause an independent environmental engineer reasonably acceptable to Administrative Agent to conduct such tests of the site where material non-compliance or alleged material non‑compliance with such Environmental Laws has occurred as to such material non-compliance and prepare and deliver to Administrative Agent a report as to such material non-compliance setting forth the results of such tests, a proposed plan for responding to any environmental problems described therein, and an estimate of the costs thereof and (ii) provide to Administrative Agent a supplemental report of such engineer whenever the scope of such material non-compliance, or such Borrower’s or Guarantor’s response thereto or the estimated costs thereof, shall change in any material respect.

(d)    Each Borrower and Guarantor shall indemnify and hold harmless Administrative Agent and Lenders and their respective directors, officers, employees, agents, invitees, representatives, successors and assigns, from and against any and all losses, claims, damages, liabilities, and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) directly or indirectly arising out of or attributable to the use, generation, manufacture, reproduction, storage, release, threatened release, spill, discharge, disposal or presence of a Hazardous Material, including the costs of any required or necessary repair, cleanup or other remedial work with respect to any property of any Borrower or Guarantor and the preparation and implementation of any closure, remedial or other required plans.  All representations, warranties, covenants and indemnifications in this Section 9.3 shall survive the payment of the Obligations and the termination of this Agreement.

9.4               Payment of Taxes and Claims.  Each Borrower and Guarantor shall, and shall cause any Subsidiary to, duly pay and discharge when due all material taxes, assessments, contributions and governmental charges upon or against it or its properties or assets, except for taxes, assessments, contributions and governmental charges the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, Guarantor or Subsidiary, as the case may be, and with respect to which adequate reserves have been set aside on its books and Administrative Agent may, at its option, establish any Reserves in respect thereof to the extent that such taxes give rise to a security interest, lien or other claim that is pari passu or has priority over the security interests of Administrative Agent or that would otherwise impair the ability of Administrative Agent to realize upon the Collateral.

(a)     Each Borrower and Guarantor shall, and shall cause any Subsidiary to, at all times, maintain with financially sound and reputable insurers insurance with respect to the Collateral against loss or damage and all other insurance of the kinds and in the amounts customarily insured against or carried by corporations of established reputation engaged in the same or similar businesses and similarly situated.  Said policies of insurance shall be reasonably satisfactory to Administrative Agent as to form, amount and insurer.  Borrowers and Guarantors shall furnish certificates, policies or endorsements to Administrative Agent as Administrative Agent shall reasonably require as proof of such insurance, and, if any Borrower or Guarantor fails to do so, Administrative Agent is authorized, but not required, to obtain such insurance at the expense of Borrowers.  All policies shall provide for at least thirty (30) days prior written notice to Administrative Agent of any cancellation or reduction of coverage and that Administrative Agent may act as attorney for each Borrower and Guarantor in obtaining (if any Borrower or Guarantor fails to do so), and at any time an Event of Default exists or has occurred and is continuing, adjusting, settling, amending and canceling such insurance.  Borrowers and Guarantors shall cause Administrative Agent to be named as a loss payee and an additional insured (but without any liability for any premiums) under such insurance policies and Borrowers and Guarantors shall obtain non-contributory lender’s loss payable endorsements to all insurance policies in form and substance satisfactory to Administrative Agent.  Such lender’s loss payable endorsements shall specify that the proceeds of such insurance shall be payable to Administrative Agent as its interests may appear and further specify that Administrative Agent and Lenders shall be paid regardless of any act or omission by any Borrower, Guarantor or any of its or their Affiliates. Without limiting any other rights of Administrative Agent or Lenders, any insurance proceeds received by Administrative Agent at any time may be applied to payment of the Obligations, whether or not then due, in any order and in such manner as Administrative Agent may determine.  Upon application of such proceeds to the Loans, Loans may be available subject and pursuant to the terms hereof to be used for the costs of repair or replacement of the Collateral lost or damages resulting in the payment of such insurance proceeds.

(b)     If any portion of any Collateral is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “flood hazard area” with respect to which flood insurance has been made available under any of the Flood Insurance Laws, then Borrowers shall (i) with respect to such Collateral maintain with responsible and reputable insurance companies reasonably acceptable to Administrative Agent, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to Administrative Agent evidence of such compliance in form and substance reasonably acceptable to Administrative Agent and upon any Lender’s request, Administrative Borrower shall deliver such evidence of compliance to such Lender.  All premiums on any of the insurance referred to in this Section 9.5(b) shall be paid when due by Borrowers and if requested by Administrative Agent, summaries of the policies shall be provided to Administrative Agent annually or as it may otherwise reasonably request.  Without limiting the rights of Administrative Agent provided for above, if Borrowers fail to obtain or maintain any insurance required under the Flood Insurance Laws, Administrative Agent may obtain it at Borrowers’ expense.  By purchasing any of the insurance referred to in this Section 9.5(b), Administrative Agent shall not be deemed to have waived any Default or Event of Default arising from Borrowers’ failure to maintain such insurance or pay any such premiums in respect thereof.

(a)     Each Borrower and Guarantor shall, and shall cause any Subsidiary to, keep proper books and records of all financial transactions and matters involving the assets and the business of such Borrower, Guarantor and its Subsidiaries in accordance with GAAP.  Borrowers and Guarantors shall furnish to Administrative Agent and Lenders within a reasonable time all such financial and other information as Administrative Agent shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and Borrower shall notify the auditors and accountants of Borrowers and Guarantors that Administrative Agent is authorized to obtain such information directly from them; provided, that, so long as no Default or Event of Default shall exist or have occurred and be continuing, Administrative Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Lead Borrower, which approval shall not be unreasonably withheld, conditioned or delayed.  Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative Agent, the following:

(i)         within thirty (30) days after the end of each fiscal four (4) week period (or forty-five (45) days after the end of each fiscal quarter), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flows, and statements of shareholders’ equity), and unaudited consolidating financial statements (including balance sheets and statements of income and loss), all in reasonable detail and substantially in the form of Exhibit D-1 hereto, fairly presenting, in all material respects, the financial position and the results of the operations of Parent and its Subsidiaries as of the end of and through such fiscal four (4) week period, certified to be correct by the chief financial officer, corporate treasurer or vice president of finance of Parent, subject to normal year-end adjustments and no footnotes and accompanied by a compliance certificate substantially in the form of Exhibit E hereto, along with a schedule in a form reasonably satisfactory to Administrative Agent in good faith of the calculations used in determining, as of the end of such four (4) week period, whether Borrowers and Guarantors are in compliance with the covenant set forth in Section 9.18 of this Agreement for such fiscal four (4) week period, and

(ii)   within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flows, and statements of shareholders’ equity) and unaudited consolidating financial statements (including balance sheets and statements of income and loss), and the accompanying notes thereto, all in reasonable detail and substantially in the form of Exhibit D-2 hereto, fairly presenting in all material respects the financial position and the results of the operations of Parent and its Subsidiaries as of the end of and for such fiscal year, together with the unqualified opinion of independent certified public accountants with respect to the audited consolidated financial statements, which accountants shall be Deloitte & Touche LLP, another nationally recognized independent accounting firm selected by Borrowers and acceptable to Administrative Agent or a regional independent accounting firm selected by Borrowers and reasonably acceptable to Administrative Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of Parent and its Subsidiaries as of the end of and for the fiscal year then ended. All references to a “fiscal four (4) week period” herein or otherwise in this Agreement or any of the other Financing Agreements shall mean such four (4) or five (5) week periods as calculated in accordance with the current accounting practices of Borrowers and Guarantors as of the Effective Date, and

(iii)   at such time as available, but in no event later than sixty (60) days after the end of each fiscal year, projected consolidated financial statements and consolidating financial statements (including in each case, forecasted balance sheets and statements of income and loss, and statements of cash flow) of Parent and its Subsidiaries for the next fiscal year, all in reasonable detail, and in a format consistent with the projections delivered by Borrowers to Administrative Agent prior to the Effective Date (or otherwise in form reasonably acceptable to Administrative Agent), together with such supporting information as Administrative Agent may reasonably request.  Such projected financial statements shall be prepared on a monthly basis for the next succeeding year. Such projections shall represent the reasonable best estimate by Borrowers and Guarantors of the future financial performance of Parent and its Subsidiaries for the periods set forth therein and shall have been prepared on the basis of the assumptions set forth therein which Borrowers and Guarantors believe are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that actual results may differ from those set forth in such projected financial statements).  Borrowers (or Lead Borrower on behalf of Borrowers) shall provide to Administrative Agent, as Administrative Agent may require, updates with respect to such projections at any time a Default or Event of Default exists or has occurred and is continuing.

(b)     Borrowers and Guarantors shall promptly notify Administrative Agent in writing of the details of (i) any loss, damage, investigation, action, suit, proceeding or claim relating to Collateral having a value of more than $10,000,000, or which if adversely determined would result in a Material Adverse Effect, (ii) any order, judgment or decree in excess of $15,000,000 that shall have been entered against any Borrower or Guarantor any of its or their properties or assets, (iv) any notification of a material violation of laws or regulations received by any Borrower or Guarantor, (v) any ERISA Event, and (vi) the occurrence of any Default or Event of Default.

(c)     Borrowers and Guarantors shall promptly after the sending or filing thereof furnish or cause to be furnished to Administrative Agent copies of all reports which Parent sends to its stockholders generally and copies of all reports and registration statements which any Borrower or Guarantor files with the Securities and Exchange Commission, any national securities exchange or the National Association of Securities Dealers, Inc.

(d)    Borrowers and Guarantors shall furnish or cause to be furnished to Administrative Agent such budgets, forecasts, projections and other information respecting the Collateral and the business of Borrowers and Guarantors, as Administrative Agent may, from time to time, reasonably request.  Subject to the terms of Section 13.5 hereof, Administrative Agent is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of Borrowers and Guarantors to any court or other Governmental Authority or to any Lender or Participant or prospective Lender or Participant or any Affiliate of any Lender or Participant. Each Borrower and Guarantor hereby irrevocably authorizes and directs all accountants or auditors to deliver to Administrative Agent, at Borrowers’ expense, upon Administrative Agent’s request, copies of the financial statements of any Borrower and Guarantor and any reports or management letters prepared by such accountants or auditors on behalf of any Borrower or Guarantor and to disclose to Administrative Agent and Lenders upon Administrative Agent’s request such information as they may have regarding the business of any Borrower and Guarantor. So long as no Default or Event of Default shall exist or have occurred and be continuing, Administrative Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Lead Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Any documents, schedules, invoices or other papers delivered to Administrative Agent or any Lender may be destroyed or otherwise disposed of by Administrative Agent or such Lender one (1) year after the same are delivered to Administrative Agent or such Lender, except as otherwise designated by Lead Borrower to Administrative Agent or such Lender in writing.

(e)     Documents required to be delivered pursuant to Sections 9.6(a)(i) and (ii) or Section 9.6(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent or any other Borrower or Guarantor posts such documents, or provides a link thereto on Parent’s or such other Borrower’s or Guarantor’s website on the Internet at the website address listed on Schedule 9.6(e); or (ii) on which such documents are posted on Parent’s or any other Borrower’s or Guarantor’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided, that: (i) Borrowers and Guarantors shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers and Guarantors to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) Lead Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in every instance the Borrowers and Guarantors shall be required to provide paper copies of the Compliance Certificates to the Administrative Agent.  The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrowers and Guarantors with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

(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 Borrowers or as Administrative Agent may otherwise agree and (B) Administrative Agent shall have received an updated Borrowing Base Certificate that gives effect to such sale or other disposition,

(iii)     the issuance and sale by (A) Parent of its Capital Stock pursuant to and in accordance with the Nash-Finch Merger and (B) any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the Effective Date; provided, that, (1) Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (2) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (3) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Administrative Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the Effective Date, (4) except as Administrative Agent may otherwise agree in writing, all of the Net Proceeds of the sale and issuance of such Capital Stock shall be paid to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof and (E) as of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred,

(iv)     the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan (including the Associate Stock Purchase Plan and the Restricted Stock Plan of Parent) or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default,

(v)       sales or other dispositions by any Borrower of assets in connection with the closing or sale of a retail store location of such Borrower in the ordinary course of such Borrower’s business which consist of leasehold interests in the premises of such store (including the subleasing of the leasehold interest of such Borrower in such premises), the bulk sale of Inventory, Equipment and fixtures located at such premises to the purchaser of the leasehold interests and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, (A) on the date of, and after giving effect to, any such closing or sale, the number of retail store locations that had been operated by Borrowers that are closed or sold by Borrowers in any fiscal year shall not be greater than twenty (20%) percent of  the number of retail stores operated by Borrowers as of the end of the immediately preceding fiscal year, (B) on the date of, and after giving effect to any such closing or sale, the aggregate amount of the fair market value of all of such assets sold or otherwise disposed of in connection with all store closings, together with the aggregate fair market value of all Real Property, Prescription Files and Tax Stamps sold after the Effective Date (but excluding for this purpose sales of Non-Operating Assets and sales of Real Property that is acquired by any Borrower or Guarantor after the Effective Date permitted under the terms of this Agreement), shall not exceed ten (10%) percent of the total assets of Parent and its Subsidiaries (measured as of the Effective Date after giving effect to the Nash-Finch Merger and excluding Non-Operating Assets and such Real Property acquired after the Effective Date), (C) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Administrative Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Administrative Agent may request, (D) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (E) such sale shall be on commercially reasonable prices and terms in a bona  fide  arm’s length transaction with a Person that is not an Affiliate, (F) as of the date of any such sale or other disposition and after giving effect thereto, the Excess Availability shall have been not less than fifteen (15%) percent of the Maximum Credit for each of the immediately preceding ten (10) consecutive days and as of the date of any such sale or other disposition and after giving effect thereto, the Excess Availability shall be not less than such amount, (G) Administrative Agent shall have received an updated Borrowing Base Certificate that gives effect to such sale or other disposition and (H) any and all Net Proceeds payable or delivered to such Borrower in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof,

(vi)     the sale (including a Sale and Lease-Back Transaction) by Borrowers of Eligible Real Property; provided, that: 

(A)   as to any such sale or Sale and Lease-Back Transaction, each of the following conditions is satisfied:  (1) on the date of, and after giving effect to any such sale, the aggregate amount of the fair market value of all of such Eligible Real Property disposed of after the Effective Date, together with the fair market value of all Real Property other than Eligible Real Property, assets sold or otherwise disposed of in connection with all store closings, Prescription Files and Tax Stamps sold after the Effective Date (but excluding for this purpose sales of Non-Operating Assets and sales of Real Property that is acquired by any Borrower or Guarantor after the Effective Date permitted under the terms of this Agreement), shall not exceed ten (10%) percent of the total assets of Parent and its Subsidiaries (measured as of the Effective Date after giving effect to the Nash-Finch Merger and excluding Non-Operating Assets and such Real Property acquired after the Effective Date), (2) as of the date of any such sale or sale and leaseback and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (3) on the date of the consummation of any such disposition, all of the Net Proceeds of any such disposition shall be remitted to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof, (4) in the event that on the date of, and after giving effect to any such sale, the Excess Availability is less than $275,000,000, the Net Proceeds as to any Eligible Real Property shall be not less than the aggregate amount of Tranche A Real Estate Availability and Tranche A-2 Real Estate Availability provided in respect of any such Eligible Real Property so disposed of, (5) the Tranche A Real Estate Availability shall be reduced by the amount of Tranche A Real Estate Availability provided in respect of any such Eligible Real Property and the Tranche A-2 Real Estate Availability shall be reduced by the amount of Tranche A-2 Real Estate Availability provided in respect of any such Eligible Real Property, (6) Administrative Agent shall have received an updated Borrowing Base Certificate that gives effect to such sale, (7) Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments related to any such sale or Sale and Lease-Back Transaction, (8) with respect to any such Sale and Lease-Back Transaction, the lease contemplated by such Sale and Lease-Back Transaction is executed within one-hundred and eighty (180) days of the sale of such Eligible Real Property, and (9) all consideration delivered or payable to any Borrower or Guarantor in respect of such disposition, including all amounts at any time payable to any Borrower or Guarantor, and all rights, benefits and remedies of any Borrower and Guarantor pursuant to any agreement, document or instrument related to any such disposition, is and shall continue at all times to be subject to the valid and enforceable, first priority perfected security interest and lien of Administrative Agent, and Borrowers and Guarantors shall take such other and further actions as may be required hereunder with respect to any such consideration, and

(B)   upon the satisfaction of each of the conditions set forth in clause (A) above, including, but not limited to, the receipt by Administrative Agent of the Net Proceeds from such sale or Sale and Lease-Back Transaction in immediately available funds in the Administrative Agent Payment Account, Administrative Agent shall, at Borrowers’ expense, (1)  release the security interest, mortgage and lien of Administrative Agent in and upon such Eligible Real Property and (2) execute and deliver to Lead Borrower a release instrument with respect to such Eligible Real Property, in form and substance satisfactory to Administrative Agent;

(vii)    the sale (including a Sale and Lease-Back Transaction) by Borrowers of Real Property (other than Eligible Real Property); provided, that: 

(A)   as to any such sale or Sale and Lease-Back Transaction, each of the following conditions is satisfied:  (1) on the date of, and after giving effect to any such sale, the aggregate amount of the fair market value of all of such Real Property disposed of after the Effective Date, together with the fair market value of all Eligible Real Property sold after the Effective Date, assets sold or otherwise disposed of in connection with all store closings, Prescription Files and Tax Stamps sold after the Effective Date (but excluding for this purpose sales of Non-Operating Assets and sales of Real Property that is acquired by any Borrower or Guarantor after the Effective Date permitted under the terms of this Agreement), shall not exceed ten (10%) percent of the total assets of Parent and its Subsidiaries (measured as of the Effective Date after giving effect to the Nash-Finch Merger and excluding Non-Operating Assets and such Real Property acquired after the Effective Date), (2) Borrowers and Guarantors shall cause all of the Net Proceeds at any time payable to any Borrower or Guarantor pursuant to any agreement, document or instrument related to the such disposition to be paid by the other party or parties thereto directly to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof, (3) Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments related to any such sale or Sale and Lease-Back Transaction, (4) with respect to any such Sale and Lease-Back Transaction, the lease contemplated by such Sale and Lease-Back Transaction is executed within one-hundred and eighty (180) days of the sale of such Real Property, and (5) all consideration delivered or payable to any Borrower or Guarantor in respect of such disposition, including all amounts at any time payable to any Borrower or Guarantor, and all rights, benefits and remedies of any Borrower and Guarantor pursuant to any agreement, document or instrument related to any such disposition, is and shall continue at all times to be subject to the valid and enforceable, first priority perfected security interest and lien of Administrative Agent, and Borrowers and Guarantors shall take such other and further actions as may be required hereunder with respect to any such consideration,

(B)   upon the satisfaction of each of the conditions set forth in clause (A) above, including, but not limited to, the receipt by Administrative Agent of the Net Proceeds from such sale or Sale and Lease-Back Transaction in immediately available funds in the Administrative Agent Payment Account, Administrative Agent shall, at Borrowers’ expense, (1)  release the security interest, mortgage and lien of Administrative Agent in and upon such Real Property and (2) execute and deliver to Lead Borrower a release instrument with respect to such Real Property, in form and substance satisfactory to Administrative Agent;

(viii)   the subleases by Borrowers in effect on the Effective Date of Real Property subleased by any such Borrower to a customer of Borrowers listed on Schedule 9.7 hereto and leases or subleases entered into after the Effective Date by a Borrower or Guarantor of Real Property leased or owned by such Borrower or Guarantor acquired after the Effective Date to a customer of a Borrower (other than in connection with the closing or sale of a then existing retail store location of a Borrower or Guarantor which shall be subject to clause (v) above); provided, that, as to leases or subleases entered into after the Effective Date, (A) any such lease or sublease shall be entered into in the ordinary course of the business of such Borrower or Guarantor consistent with the current practices of such Borrower or Guarantor as of the Effective Date, (B) the aggregate amount of the payments by Borrowers and Guarantors to purchase or otherwise acquire all of such Real Property that is to be leased or subleased to a customer in any fiscal year and the aggregate amount of the rent and other amounts payable by Borrowers and Guarantors to the owner of such Real Property that is to be subleased by such Borrower or Guarantor to a customer in any fiscal year, together with the maximum aggregate amount that Borrowers and Guarantors may be required to pay under the guarantees issued by them permitted under Section 9.9(i) below in such fiscal year, shall not exceed $10,000,000 and after giving effect to any payments for the purchase or other acquisition of any such Real Property, the Excess Availability shall be not less than fifteen (15%) percent of the Maximum Credit, (C) to the extent applicable, the Borrower or Guarantor acquiring such Real Property shall have complied with the terms of Section 9.21 hereof with respect to such Real Property and the terms of such lease shall in all respects be subordinate to the Mortgage applicable to such Real Property and otherwise subject to the terms with respect thereto set forth in the Mortgage applicable to such Real Property, and (D) as of the date of entering into any such lease or sublease and after giving effect thereto, no Default or Event of Default shall exist or have occurred,

(ix)     the licensing by a Borrower or Guarantor of Intellectual Property owned by it to another Borrower or Guarantor; provided, that, as to any such license:  (A) any rights of such Borrower or Guarantor shall be subject to the rights of Administrative Agent in such Intellectual Property (including the rights of Administrative Agent to use such Intellectual Property upon an Event of Default), and (B) such license shall not impair, hinder or otherwise adversely affect the rights of Administrative Agent;

(x)     the abandonment or cancellation of trademarks or the failure to maintain or not renew, or the allowing to lapse of, any trademarks as registered under the laws of any country which are not material and are no longer used or useful in the business of any Borrower, Guarantor or their Subsidiaries and do not appear on or are not otherwise affixed to or incorporated in any Inventory or Equipment or necessary in connection with the Records and Borrowers and Guarantors have determined in good faith in the ordinary course of its business that such trademark being abandoned or cancelled, or not maintained or renewed, or allowed to lapse, as the case may be, under the laws of the jurisdiction of any country does not have a value in excess of $500,000 as to such trademark in such country, provided, that, no Default or Event of Default shall exist or have occurred;

(xi)     sales of Eligible Prescription Files; provided, that,  

(A)   each of the following conditions is satisfied: (1) on the date of, and after giving effect to any such sale, the aggregate amount of the fair market value of all of such Eligible Prescription Files sold after the Effective Date, together with the fair market value of all Real Property, assets sold or otherwise disposed of in connection with all store closings and Tax Stamps sold after the Effective Date (but excluding for this purpose sales of Non-Operating Assets and sales of Real Property that is acquired by any Borrower or Guarantor after the Effective Date permitted under the terms of this Agreement), shall not exceed ten (10%) percent of the total assets of Parent and its Subsidiaries (measured as of the Effective Date after giving effect to the Nash-Finch Merger and excluding Non-Operating Assets and such Real Property acquired after the Effective Date), (2) as of the date of any such sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (3) on the date of consummation of any such disposition, all of the Net Proceeds of any such disposition shall be remitted to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof, (4) in the event that on the date of, and after giving effect to any such sale, the Excess Availability is less than $275,000,000, the Net Proceeds as to the Eligible Prescription Files shall be not less than the amount of the Tranche A Prescription File Availability, Tranche A-1 Prescription File Availability and Tranche A-2 Prescription File Availability provided in respect to any such Eligible Prescription Files so disposed of, (5) each of the Tranche A Prescription File Availability, Tranche A-1 Prescription File Availability and Tranche A-2 Prescription File Availability shall be reduced by the amount of Tranche A Prescription File Availability, Tranche A-1 Prescription File Availability and Tranche A-2 Prescription File Availability provided in respect of any such Eligible Prescription Files, (6) Administrative Agent shall have received an updated Borrowing Base Certificate giving effect to such sale, (7) Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments related to any such sale, and (8) all consideration delivered or payable to any Borrower or Guarantor in respect of such sale, including all amounts at any time payable to any Borrower or Guarantor, and all rights, benefits and remedies of any Borrower and Guarantor pursuant to any agreement, document or instrument related to any such sale, is and shall continue at all times to be subject to the valid and enforceable, first priority perfected security interest of Administrative Agent, and Borrowers and Guarantors shall take all such other and further actions as may be required hereunder with respect to any such consideration; and

(B)      upon the satisfaction of each of the conditions set forth in clause (A) above, including but not limited to the receipt by Administrative Agent of the Net Proceeds from such sale in immediately available funds in the Administrative Agent Payment Account, Administrative Agent shall, at Borrower’s expense, (1) release the security interest of Administrative Agent in and upon such Prescription Files and (2) execute and deliver to Lead Borrower a release instrument with respect to such Prescription Files, in form and substance satisfactory to Administrative Agent.

(xii)      sales of Tax Stamps in excess of the amounts required in connection with the sale or other disposition of any Inventory; provided, that: 

(A)    as to any such sale, each of the following conditions is satisfied:  (1) on the date of, and after giving effect to any such sale, the aggregate amount of the fair market value of all of such Tax Stamps sold after the Effective Date, together with the fair market value of all Real Property, assets sold or otherwise disposed of in connection with all store closings and Prescripton Files sold after the Effective Date, shall not exceed ten (10%) percent of the total assets of Parent and its Subsidiaries (measured as of the Effective Date after giving effect to the Nash-Finch Merger and excluding Non-Operating Assets), (2) as of the date of any such sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (3) on the date of the consummation of any such disposition, all of the Net Proceeds of any such disposition shall be remitted to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof, (4) in the event that on the date of, and after giving effect to any such sale, the Excess Availability is less than $275,000,000, the Net Proceeds as to any Tax Stamps shall be not less than the aggregate amount included in the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base and the Tranche A-2 Borrowing Base in respect of any such Tax Stamps so disposed of, (5) the Tranche A Borrowing Base, the Tranche A-1 Borrowing Base and the Tranche A-2 Borrowing Base shall be reduced by the amount of availability provided in respect of any such Tax Stamps, (6) Administrative Agent shall have received an updated Borrowing Base Certificate that gives effect to such sale, (7) Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments related to any such sale, and (8) all consideration delivered or payable to any Borrower or Guarantor in respect of such disposition, including all amounts at any time payable to any Borrower or Guarantor, and all rights, benefits and remedies of any Borrower and Guarantor pursuant to any agreement, document or instrument related to any such disposition, is and shall continue at all times to be subject to the valid and enforceable, first priority perfected security interest and lien of Administrative Agent, and Borrowers and Guarantors shall take such other and further actions as may be required hereunder with respect to any such consideration, and

(B)   upon the satisfaction of each of the conditions set forth in clause (A) above, including, but not limited to, the receipt by Administrative Agent of the Net Proceeds from such sale in immediately available funds in the Administrative Agent Payment Account, Administrative Agent shall, at Borrowers’ expense, (1)  release the security interest, mortgage and lien of Administrative Agent in and upon such Tax Stamps and (2) execute and deliver to Lead Borrower a release instrument with respect to such Tax Stamps, in form and substance satisfactory to Administrative Agent;

(xiii)  sales or other dispositions by any Borrower or Guarantor of assets not otherwise subject to the terms hereof; provided, that, each of the following conditions is satisfied: (A) as of the date of any such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) any such sale is made at fair market values and the aggregate fair market value of all such assets sold during any fiscal year of Borrowers shall not exceed $10,000,000, except as Administrative Agent may otherwise agree in writing, (C) Borrowers and Guarantors shall cause all of the Net Proceeds at any time payable to any Borrower or Guarantor pursuant to any agreement, document or instrument related to the such disposition to be paid by the other party or parties thereto directly to Administrative Agent for application to the Obligations in accordance with Section 6.4 hereof, (D) not less than eighty (80%) percent of the consideration for such disposition is in the form of cash and (E) the assets to be so disposed are not necessary or economically desirable in connection with the principal business of Borrowers.

(xiv) wind up, liquidate or dissolve, except  that  any Borrower or Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (A) the winding up, liquidation and dissolution of such Borrower or Guarantor (as the case may be) shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (B) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (C) effective upon such winding up, liquidation or dissolution, substantially all of the assets and properties of such Borrower or Guarantor shall be duly and validly transferred and assigned to any Borrower, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Administrative Agent (and Administrative Agent shall have received such evidence thereof as Administrative Agent may require) and Administrative Agent shall have received such deeds, assignments or other agreements as Administrative Agent may request to evidence and confirm the transfer of such assets of such Borrower or Guarantor (as the case may be) to such Borrower, (D) Administrative Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (E) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (F) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Borrower or Guarantor to wind up, liquidate or dissolve and (G) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred; or

(xv)      dispositions of Rolling Stock in the ordinary course of business that is substantially worn, damaged, obsolete, or, in the judgment of a Borrower, no longer useful or necessary in its business so long as Administrative Agent shall have received an updated Borrowing Base Certificate that gives effect to such disposition.

.  Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume or suffer to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: 

(a)     the security interests and liens of Administrative Agent for itself and the benefit of Secured Parties;

(b)     liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, or Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books;

(c)     non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured (subject to customary deductibles with respect to such insurance) and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books;

(d)    zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of Real Property which do not interfere in any material respect with the use of such Real Property or ordinary conduct of the business of such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the Real Property which may be subject thereto (including any of such zoning restrictions, easements, licenses, covenants and other restrictions that are set forth in the title insurance policies issued to Administrative Agent with respect to the Real Property as of the Effective Date);

(e)     purchase money security interests in or landlord liens upon Equipment or other property (including Capital Leases) and purchase money mortgages on Real Property in each case either (i) existing on the date of this Agreement or (ii) arising after the Effective Date to secure Indebtedness permitted under Section 9.9(b) hereof;

(f)      pledges and deposits of cash by any Borrower or Guarantor after the Effective Date in the ordinary course of business in connection with workers’ compensation, social security, unemployment insurance and other types of social security benefits consistent with the current practices of such Borrower or Guarantor as of the Effective Date;

(g)     pledges and deposits of cash by any Borrower or Guarantor after the Effective Date to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), leases, surety and appeal bonds, statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the Effective Date;

(h)     liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other goods which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof), whether pursuant to consignment arrangements or otherwise, from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;

(i)       liens or rights of setoff against credit balances of Borrowers with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrowers in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers or Guarantors, pursuant to the Credit Card Agreements (as in effect on the Effective Date) to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks;

(j)       statutory or common law liens or rights of setoff of depository banks with respect to funds of Borrowers or Guarantors at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the deposit accounts maintained by Borrowers and Guarantors at such banks (but not any other Indebtedness or obligations);

(k)     judgments and other similar liens arising after the Effective Date in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such liens is in effect and (iv) Administrative Agent may establish a Reserve with respect thereto;

(l)       the security interests and liens upon Equipment, Real Property and related assets permitted to secure Refinancing Indebtedness in accordance with the terms of Section 9.9(j) hereof;

(m)   the rights of use and possession of lessees of Real Property of any Borrower or Guarantor to the extent the lease giving rise to such rights is otherwise permitted hereunder;

(n)     the security interests and liens in favor of the Qualified Debt Agent, in and on the assets and properties of Borrowers and Guarantors to secure the Indebtedness to the extent permitted under Section 9.9(f) hereof; provided, that, such security interests and liens in favor of the Qualified Debt Agent are junior and subordinate to the security interests and liens on the Collateral (other than with respect to the Qualified Debt Offering Priority Collateral) granted by Borrowers and Guarantors in favor of Administrative Agent as set forth in the Qualified Debt Intercreditor Agreement, in form and substance satisfactory to Administrative Agent  and the Required Lenders;