Common use of Mergers or Acquisitions Clause in Contracts

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person (other than Permitted Investments) except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, provided that the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 100,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankAgent’s and the Required Lenders’ prior written consent, enter into any binding contractual arrangement with any investment bank, broker, financial advisor or similar Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bankthe Lenders), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank Agent and the Lenders in advance of entering into such an agreement (provided, provided that the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, except where for (i) a merger of a Subsidiary of Borrower into another Subsidiary of Borrower or into Borrower, and (ii) a merger where: (a) each the total consideration, including cash and the value of the following conditions is applicable: (i) the consideration paid in connection with any non-cash consideration, for all such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during 1,000,000 in any fiscal year, year of Borrower; (iib) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such transactionsthe merger or the transaction related to the merger; (c) there is no materials change to Borrower’s business; (d) Borrower is the surviving legal entity in the merger or if Borrower is not the surviving legal entity, (i) the beneficial owners of at least 50% or more the combined voting power of the surviving entity were beneficial owners of Borrower immediately prior to the transaction, or (ii) at least a majority of the Board of Directors of the surviving entity were directors of the Borrower immediately prior to the transaction or are by rights able to be appointed as directors by persons who were beneficial owners of the Borrower immediately prior to the transaction, and (iii) such transactions do not result surviving legal entity will be bound to, in a Change in Controlall respects and with the same force and effect, this Agreement, each Loan Document and the Obligations, and (iv) Borrower is such surviving legal entity takes all actions to effect the surviving entityrequirements of the preceding clause (iii); or and (be) the Obligations are repaid merger does not result in full concurrently with an increase in the closing credit risk to Lenders, in its reasonable discretion (and in determining whether the proposed merger would result in an increased credit risk, Lenders may consider, among other things, changes in Borrower’s management team, employee base, access to equity markets, venture capital supports, financial position and/or disposition of any merger intellectual property rights which may reasonably be anticipated as a results of the transaction). In the event Borrower requests Lenders’ consent to a merger, consolidation or consolidation of Borrower in acquisition which Borrower is not permitted by this Section 7.3 and Lenders, after a reasonable amount of time to review the surviving entity; providedsame, however, that Borrower shall not, without Bank’s prior written declines to consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorsthen, in connection with a sale such merger, consolidation or acquisition, Borrower may terminate this Agreement without payment of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)Prepayment Fee.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) Borrower’s equity issued in such transaction is solely Borrower’s common stock; (ii) the consideration (excluding Borrower’s common stock) paid in connection with such transactions transaction (including assumption of liabilities) does not in cause the aggregate consideration (excluding Borrower’s common stock) to exceed $250,000 750,000 during any fiscal yearyear of Borrower, (iiiii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactionstransaction, (iiiiv) such transactions do transaction does not result in a Change in Control, and (ivv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, may not enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (ix) no Event of Default exists when such agreement is entered into by Borrower, (iiy) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iiiz) Borrower notifies Bank in advance of entering into such an agreement (provided, provided the failure to give such notification notice shall not be deemed a material breach violation of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where Person, other than Permitted Acquisitions. A Subsidiary may merge or consolidate into another Subsidiary (aprovided such surviving Subsidiary is a Loan Party hereunder) each of or with (or into) Borrower provided Borrower is the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with (a) any Person to attempt to facilitate that would result in a merger or acquisition of Borrower; provided howeverChange in Control, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale excess of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors Five Hundred Thousand Dollars (including, without limitation, Bank$500,000.00), foreclosure(iii) such contractual arrangement provides that the Obligations hereunder will be repaid in full in cash upon consummation of the Change of Control, bankruptcy and (iv) Borrower notifies Collateral Agent in advance of entering into such an agreement, or similar liquidation(b) an investment bank providing for a specific mandate to attempt to facilitate a Change in Control unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person a retainer or any other fee payable by Borrower whether or not a transaction is consummated in excess of Five Hundred Thousand Dollars ($500,000.00), and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (agreement; provided, the failure to give however, so long as no Event of Default exists when such notification agreement is entered into by Borrower, a binding contractual arrangement with an investment bank providing for a general strategic review mandate shall not be deemed prohibited under this clause (b) unless and until such bank is provided a material breach of this Agreement)specific mandate to attempt to facilitate a Change in Control, in which case clause (b) above shall apply.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, and (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearyear , (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entityentity (s “Sale”), or there are no Obligations outstanding upon the closing of a Sale, in either circumstance contingent upon Borrowers’ delivery to Bank of a written notice that Borrowers are terminating this Agreement and that no additional Credit Extensions shall be requested hereunder; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) in transactions involving Borrower, Borrower is the surviving entity; or (b) the outstanding Obligations (other than inchoate indemnification or reimbursement obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except as otherwise consented to by Bank or where (a) each of the following conditions is applicable: (i) the cash consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, or a division, line of business, or business unit of another Person, in each case except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full and this Agreement is terminated concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that . Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any investment banker, business broker, or similar Person to attempt to facilitate a merger or acquisition of Borrower or Borrower; provided however, Borrower may enter into ’s assets (any such agreement without Bank’s prior written consent so long as agreement, an “Investment Banker Agreement”); unless (i) no Event of Default exists when such agreement Investment Banker Agreement is entered into by Borrower, (ii) such agreement Investment Banker Agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorscounterparty the right, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, and (iii) Borrower notifies Bank in advance of entering into such an agreement Investment Banker Agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration Person, unless all Obligations are indefeasibly paid in connection full in cash contemporaneously with such transactions merger or consolidation. A Subsidiary may merge or consolidate into another Subsidiary (including assumption provided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of liabilitiesBorrower’s Obligations hereunder) does not in or with (or into) Borrower provided Borrower is the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) neither Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of nor any merger or consolidation Subsidiary of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall notshall, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided howeverBorrower or any of its Subsidiaries, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feebreak-up or similar fees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, in connection any of its Subsidiaries as a result of any failure to proceed with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidationclose such transaction, and (iiiii) Borrower notifies Bank Collateral Agent in advance of entering into into, or its Subsidiary entering into, such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. (a) Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where other than pursuant to the consummation of a Permitted Acquisition. A Subsidiary may merge or consolidate into another Subsidiary (aprovided such surviving Subsidiary is a “co‑borrower” hereunder or has provided a secured guaranty of Borrower’s Obligations hereunder) each of or with (or into) a Loan Party provided such Loan Party is the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall notno Loan Party shall, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided howevera Loan Party, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrowersuch Loan Party, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, the Loan Parties in connection with a sale excess of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors Five Hundred Thousand Dollars (including, without limitation, Bank$500,000.00), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower a Loan Party notifies Bank in advance of Collateral Agent promptly upon entering into such an agreement agreement. (providedb) Notwithstanding the foregoing Section 7.3(a), or anything herein to the contrary, Parent may merge, reverse merge or consolidate with a SPAC, or become a wholly owned subsidiary of a SPAC pursuant to Parent’s acquisition by a SPAC by a transaction or a series of related transactions (“SPAC Transaction”) (and for the avoidance of doubt no further consents and/or approvals from Collateral Agent and/or Lenders shall be required), if: (i) SPAC Transaction is consummated on or before April 30, 2021; (ii) Either (i) such SPAC must have cash assets in the US or UK of at least Eighty Million Dollars ($80,000,000.00) upon closing of the SPAC Transaction (not including any amounts raised by private or public investments in such SPAC in connection with the SPAC Transaction) or (ii) no later than 14 days after the closing of the SPAC Transaction, the failure surviving entity/entities must have cash assets in the US or UK (including any amounts raised by private or public investments in such SPAC in connection with the SPAC Transaction) of not less than One Hundred Fifty Million Dollars ($150,000,000.00); (iii) such SPAC must be incorporated or organized under the laws of a state in the United States or Cayman Islands and its principal place of business must be in the United States or the United Kingdom and, for tax purposes, be considered a resident of the United States, United Kingdom or such other jurisdiction as is reasonably acceptable to give Collateral Agent; (iv) the equity securities of such notification SPAC must be traded on a major national stock exchange in the United States immediately prior to the SPAC Transaction and after the SPAC Transaction, further provided that for the avoidance of doubt, Lenders hereby agree that the NYSE and NASDAQ are deemed acceptable major national stock exchanges; (v) such SPAC must not have any outstanding Indebtedness or liabilities (other than liabilities incurred for reasonable fees and expenses incurred in connection with the SPAC Transaction); (vi) at least one (1) reputable institutional life sciences investor(s) (acceptable to Collateral Agent in its discretion) must be a major investor in such SPAC at the time of the consummation of the SPAC Transaction; (vii) such SPAC must (i) if such SPAC entity is formed outside of the United States, become a co-borrower hereunder and, among other things, enter into a joinder agreement hereto, and agree to comply with and be bound by all of the terms, conditions and covenants of the Loan Agreement and Loan Documents, as if it were originally named a “Borrower” therein (but effective on the date of such joinder), and (ii) if such SPAC entity is formed in the United States, provide a guaranty of Borrower’s obligations hereunder (and for the avoidance of doubt, any such SPAC entity formed in the United States shall not be required to be a co-borrower under this Agreement or the Loan Documents), in each case in form and substance acceptable to Collateral Agent, and in each case grant a security interest in all of its assets constituting “Collateral” in accordance with the provisions of the Loan Documents, make all of the representations and warranties (subject to applicable qualifications set forth in this Section 7.3(b)) in the Loan Documents with the same force and effect as if it were originally named a “Loan Party” herein and a Borrower or a Guarantor, as applicable, in the applicable Loan Documents (but effective and as-of the date of such joinder or guaranty, as applicable); (viii) the consideration in such SPAC Transaction must consist entirely of equity securities of such SPAC (other than cash paid in lieu of issuing fractional shares, the aggregate amount of which cash may not exceed $100,000.00); and (ix) there must be no actions, suits, investigations, or proceedings pending or threatened in writing by or against such SPAC immediately prior to entering into and publicly announcing the SPAC Transaction; furthermore, no lawsuit filed or threatened against such SPAC after the announcement of the SPAC Transaction, could be expected to jeopardize the consummation of the SPAC Transaction or have a Material Adverse Change, in each case, as determined by Collateral Agent (for the purposes of clarification, nothing herein is a waiver of or intended to be construed as a waiver of any Event of Default that may occur from such a lawsuit). (c) Further, notwithstanding the foregoing Section 7.3(a), or anything herein to the contrary, Parent may become a wholly owned subsidiary of a HoldCo pursuant to a transaction or a series of related transactions, whereby each of the shareholders of Immunocore exchanges their shares for shares in HoldCo (“HoldCo Transaction”), if: (i) HoldCo Transaction is consummated in furtherance of an initial public offering of the equity securities of the HoldCo on a national stock exchange in the United States or the United Kingdom (which, for the avoidance of doubt, may include the offering of shares or American Depositary Shares); (ii) No later than ninety (90) days after the consummation of the HoldCo Transaction, HoldCo must receive unrestricted net cash proceeds of not less than Seventy Five Million Dollars ($75,000,000.00) from the sale and issuance of its equity securities (whether in a public market or otherwise) and/or in the form of upfront payments from the entrance into a collaboration agreement or similar business development agreement with an unaffiliated third party (which agreement must otherwise be permitted under the terms of the HoldCo Loan Agreement (as defined herein)), and/or Subordinated Debt (or any combination of the foregoing), and failure to do as much shall constitute an immediate Event of Default under the HoldCo Loan Agreement; (iii) In connection with the HoldCo Transaction, Parent shall become a wholly owned Subsidiary of the HoldCo and all shareholders of Parent immediately prior to the consummation of the HoldCo Transaction shall become shareholders of HoldCo and own a majority of the issued and outstanding voting capital stock of the HoldCo; (iv) HoldCo must (i) be incorporated or organized under the laws of United Kingdom or Cayman Islands, (ii) be a resident for Tax purposes in United Kingdom and (iii) and have its principal place of business in the United Kingdom or such other jurisdiction (other than the United States) as is acceptable to Collateral Agent; (v) HoldCo must not have any outstanding Indebtedness or liabilities (other than liabilities incurred for reasonable fees and expenses incurred in connection with the formation and maintenance of legal existence of HoldCo, the HoldCo Transaction, the Loan Documents or the equity financing contemplated to be consummated following the HoldCo Transaction); (vi) Concurrently with the Holdco Transaction the parties agree that following shall occur: (1) At Parent’s written request, Lenders shall concurrently with the HoldCo Transaction effectiveness, assign all of their right, title and interest in the then-outstanding Credit Extensions made by Lenders to Parent hereunder, any Secured Promissory Notes evidencing the same, together with all of its right, title and interest under this Agreement, the Guaranties, the Success Fee Letter and all other Loan Documents (collectively, the “Assigned Debt Documents”) to HoldCo; (2) Concurrently with the effectiveness of the HoldCo Transaction and in consideration for the assignment of the Assigned Debt Documents, HoldCo shall (i) enter into a new Loan and Security Agreement (the “HoldCo Loan Agreement”) as the borrower thereunder, which shall be in the same form as this Agreement with such changes as are acceptable to Collateral Agent in its discretion or are reasonably required by Collateral Agent (in each case, only to the extent that such changes provide that the Lender and the Collateral Agent shall have the benefit of the same terms under the HoldCo Loan Agreement as they had under this Agreement immediately prior to the relevant HoldCo Transaction), with appropriate adjustments to reflect the HoldCo as the “borrower” thereunder and Parent and the other Guarantors as secured guarantors, and a loan shall be deemed to have been made pursuant to the HoldCo Loan Agreement, which shall be deemed outstanding and owing by HoldCo to Lender in principal amount of the then-outstanding Credit Extensions under this Agreement (the “Restructuring Loan”), (ii) issue one or more Secured Promissory Notes evidencing the Restructuring Loan and comply with all conditions and provisions of the HoldCo Loan Agreement, and (iii) execute and deliver, and cause Parent and the other Guarantors (as guarantors with respect to the Restructuring Loan and the other obligations pursuant to the HoldCo Loan Agreement) to execute and deliver, guarantees, collateral security documents and other Loan Documents, including without limitation a material breach success fee letter, on the same terms as the Loan Documents in effect as of such date (HoldCo Loan Agreement together with all the foregoing loan documents to be entered into in connection therewith, the “HoldCo Loan Documents”); (3) In consideration of the debt assignment (described above) HoldCo shall (i) procure that the stock transfer forms in respect of the HoldCo Transaction are submitted to the stamp office of HMRC no later than ten (10) Business Days following the consummation of such HoldCo Transaction, (ii) procure that the transfers of the shares to HoldCo are registered in the company books of Parent as soon as reasonably practicable, and in any event within five (5) Business Days of the stock transfer forms being stamped (or otherwise able to be registered without penalty) and (iii) as soon as reasonably practicable upon such registration and in any event within ten (10) Business Days thereof, pledge all shares of Parent to Collateral Agent pursuant to a pledge agreement in form and substance acceptable to Collateral Agent; (vii) the terms of the HoldCo Transaction must not adversely affect the enforceability of the HoldCo Loan Agreement and HoldCo Loan Documents or Collateral Agent’s rights and remedies with respect to the Collateral of any of the HoldCo, Parent and all Guarantors, except that each of the parties to this Agreement acknowledge and agree that entering into the relevant Holdco Loan Documents will re-start any applicable hardening periods under any English law governed security documents; (viii) no assets of Parent shall be transferred to any other Person except for transfers to Holdco or any other Transfers permitted pursuant to Section 7.1; (ix) following the assignment of this Agreement and the other Loan Documents, the Assigned Debt and the related Loan Documents shall immediately be amended and restated as an unsecured intercompany note in form and substance satisfactory to Collateral Agent (which shall be pledged to Collateral Agent pursuant to the HoldCo Loan Agreement) and collateral security documents, filings and registrations shall be released or terminated, as applicable; (x) Parent shall have given Collateral Agent notice not less than thirty (30) days prior to the effectiveness of the HoldCo Transaction and shall deliver such documents or take such other actions as Collateral Agent or any Lender request to establish a basis for relief from applicable withholding taxes with respect to payments made by HoldCo as Borrower or a Loan Party; provided, however, no Lender shall be required to take any action to seek such relief other than provide information reasonably requested by Parent from such Lender or other actions required by Section 2.6; (xi) HoldCo (as new Borrower) shall agree to promptly and fully compensate and make whole each Lenders for any Tax liability to such Lender of the HoldCo Transactions; provided Lenders shall provide information upon Parent’s reasonable request if necessary to allow Parent to determine any such Tax liability; (xii) HoldCo must be a newly incorporated entity and have no prior existence or operations and HoldCo must be otherwise acceptable to Collateral Agent as a Borrower based on Collateral Agent’s diligence of HoldCo; (xiii) the officers and directors of the HoldCo immediately after the consummation of the HoldCo Transaction must be reasonably acceptable to Collateral Agent (it being agreed and understood that if such officers and directors are the same as the officers and directors of Borrower immediately prior to the consummation of the HoldCo Transaction, they will be acceptable to Collateral Agent for the purposes hereof); (xiv) HoldCo and the terms of the HoldCo Transaction must otherwise be acceptable to Collateral Agent in its sole discretion; provided, however, if Collateral Agent determines the HoldCo Transaction to not be acceptable or unduly conditions or delays confirming that the HoldCo Transaction is acceptable, but the conditions for the HoldCo Transaction set forth in this Section 7.3 (other than this subsection (xiv) are otherwise satisfied, then the HoldCo Transaction may still be consummated if HoldCo covenants in the HoldCo Loan Agreement to prepay all Obligations no later than ninety (90) days after the consummation of the HoldCo Transaction; provided, however, no Prepayment Fee will become due in connection with such prepayment; provided further, failure to make such prepayment shall constitute an immediate Event of Default under the HoldCo Loan Agreement; (xv) no Event of Default shall have occurred and be continuing immediately prior to the consummation of the HoldCo Transaction or shall result from the consummation of the HoldCo Transaction. (xvi) Further, notwithstanding the foregoing Section 7.3(a), or anything herein to the contrary, Parent may become a wholly owned subsidiary of a HoldCo pursuant to a transaction or a series of related transactions, whereby each of the shareholders of Immunocore becomes a shareholder of Holdco wherein Parent does not request Lenders to assign its interest in the Loan Documents as described in subsection (c)(vi)(1) above, subject to compliance with subsections (c)(i), (ii), (iii), (iv), (v), (vii), (viii), (xii), (xiii), (xiv) and (xv) above and provided that in such case Holdco shall become a Guarantor with respect to the Obligations and shall concurrently with Holdco becoming the owner of the outstanding shares of Parent, enter into such Loan Documents to grant Collateral Agent a Lien on its assets on substantially the terms of the security interest granted in the Collateral pursuant to this Agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, or a division, line of business, or business unit of another Person, in each case except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed Five Hundred Thousand Dollars ($250,000 500,000) during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, (iv) Borrower shall have provided 5 Business Days notice to Bank prior to consummation of any such transactions having consideration in excess of Two Hundred Fifty Thousand Dollars ($250,000), and (ivv) Borrower is the surviving entity; or (b) the Obligations are repaid in full and this Agreement is terminated concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that . Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any investment banker, business broker, or similar Person to attempt to facilitate a merger or acquisition of Borrower or Borrower; provided however, Borrower may enter into ’s assets (any such agreement without Bank’s prior written consent so long as agreement, an “Investment Banker Agreement”); unless (i) no Event of Default exists when such agreement Investment Banker Agreement is entered into by Borrower, and (ii) such agreement Investment Banker Agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorscounterparty the right, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) to claim any fee, payment or damages from any parties, other than from Borrower notifies Bank in advance of entering into such an agreement (providedor Borrower’s investors. Notwithstanding the foregoing, the failure to give such notification this Section 7.3 shall not be deemed a material breach of this Agreement)apply to Permitted Transactions.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), ) or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (providedprovided that, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 350,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) if Borrower is a party to the merger, then Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into such Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) in transactions involving a Borrower, such Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of such Borrower in which such Borrower is not the surviving entity; provided, however, that such Borrower shall not, without BankAgent’s and the Required Lenders’ prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of such Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by such Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from such Borrower or such Borrower’s investors, in connection with a sale of such Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to such Borrower’s creditors (including, without limitation, Bankthe Lenders), foreclosure, bankruptcy or similar liquidation, and (iii) such Borrower notifies Bank Agent in advance of entering into such an agreement (provided, provided that the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into such Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) such Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of such Borrower in which such Borrower is not the surviving entity; provided, however, that such Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of such Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by such Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from such Borrower or such Borrower’s investors, in connection with a sale of such Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to such Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) such Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidateconsolidate with any other Person, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, acquire all or substantially all of the capital stock or property of another Person except where Person; provided, however, (a) each that a Subsidiary of the following conditions is applicable: Borrower or a Secured Guarantor may merge or consolidate into such Borrower or a Secured Guarantor so long as (i) the consideration paid in connection Borrower has provided Agent with prior written notice of such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yeartransaction, (ii) Borrower or a Secured Guarantor, as applicable, shall be the surviving legal entity (or in the case of a merger or consolidation involving a Secured Guarantor and Borrower, Borrower shall be the surviving legal entity), (iii) Borrower’s tangible net worth is not thereby reduced, (iv) no Event of Default has occurred, occurred and is continuing prior thereto or would exist arises as a result therefrom, and (v) Borrower shall be in compliance with the covenants set forth in this Agreement both before and after giving effect to such transactionstransaction, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation that a Subsidiary of Borrower in which Borrower that is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter a Secured Guarantor may merge or consolidate into any binding contractual arrangement with any Person to attempt to facilitate a merger its parent or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent another Subsidiary so long as (i) Borrower has provided Agent with prior written notice of such transaction, (ii) Borrower’s tangible net worth is not thereby reduced, (iii) if such other Subsidiary is a Borrower or a Secured Guarantor, such Borrower or such Secured Guarantor, as applicable, shall be the surviving legal entity, (iv) no Event of Default exists when such agreement has occurred and is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment continuing prior thereto or damages from any parties, other than from Borrower or Borrower’s investors, in connection with arises as a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidationresult therefrom, and (iiiv) Borrower notifies Bank shall be in advance of entering into compliance with the covenants set forth in this Agreement both before and after giving effect to such an agreement transaction or (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)c) Borrower may make Permitted Acquisitions.

Mergers or Acquisitions. (i) Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization Person (other than mergers unless contemporaneously with the consummation of any such merger or consolidations consolidation all of the Obligations have been indefeasibly paid in full in cash and all obligations of the Collateral Agent and/or Lenders to make loans or otherwise extend credit to the Company have terminated), provided that a Subsidiary may merge or consolidate into another Subsidiary of Parent (provided such surviving Subsidiary is a “Borrower” hereunder or into has provided a secured Guaranty of Borrower)’s Obligations hereunder) or with (or into) a Credit Party or Guarantor provided such Credit Party or Guarantor is the surviving legal entity, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of no Credit Party nor any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall notSubsidiary shall, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as Credit Party or Subsidiary, unless (i) no Event of Default exists when such agreement is entered into by Borrowerinto, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from such Credit Party or any parties, other than from Borrower or Borrower’s investors, such Subsidiary in connection with a sale excess of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors Two Hundred Fifty Thousand Dollars (including, without limitation, Bank$250,000), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower Parent notifies Bank Collateral Agent in advance of entering into such an agreement and (providediv) such agreement provides for the indefeasible payment in full in cash of all Obligations contemporaneously with the consummation of any such merger or acquisition; or (ii) Acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the failure to give such notification shall not be deemed a material breach capital stock, shares or property of this Agreement)another Person.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 1,000,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with total cash consideration, for all such transactions (including assumption of liabilities) transactions, does not in the aggregate exceed Five Hundred Thousand Dollars ($250,000 during 500,000.00) in any fiscal year, year of Borrower; (iib) no Event of Default has occurred, is continuing or would exist after giving effect such transactions are accretive to such transactions, Borrower; (iiic) such transactions do not result in a Change in Control, ; (d) no Event of Default has occurred and is continuing or would exist after giving effect to the transactions; and (ive) Borrower is the surviving legal entity; . A Subsidiary may merge or consolidate into another Subsidiary (bprovided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) the Obligations are repaid in full concurrently or with the closing of any merger (or consolidation of into) Borrower in which provided Borrower is not the surviving legal entity; provided, howeverand as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feebreak-up or similar fees, payment payments or damages from any parties, other than from Borrower or Borrower’s investorsany of its Subsidiaries in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate as a result of any failure to proceed with or close such merger or acquisition, in connection with a sale of Borrower’s stock or assets pursuant except to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy extent any such break-up or similar liquidationfees, payments or damages are to be funded solely from cash proceeds received by Borrower from a third party and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (providedagreement. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, the failure to give such notification shall not be deemed a material breach of this Agreement)MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; provided that any Subsidiary may merge or consolidate into Borrower or may be dissolved or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, and (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of upon entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge Borrower shall not merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)organization, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, in each case, except where for the following: (a) each Permitted Acquisitions; (b) mergers or consolidations of Subsidiaries with or into any Loan Party (provided that such Loan Party shall be the following conditions is applicable: continuing or surviving Person); (c) any Subsidiary may Dispose of any or all of its assets (i) the consideration paid in connection with such transactions to any Loan Party (including assumption of liabilitiesupon voluntary liquidation or otherwise) does not in the aggregate exceed $250,000 during any fiscal year, or (ii) no Event pursuant to a Disposition permitted under Section 7.5; (d) any Subsidiary that is not a Loan Party may Dispose of Default has occurred, any or all of its assets to any other Subsidiary that is continuing not a Loan Party; (e) any Subsidiary that is not a Loan Party may be merged or would exist after giving effect to such transactions, (iii) such transactions do consolidated with or into any other Subsidiary that is not result in a Change in Control, Loan Party; and (ivf) Borrower is the surviving entity; any Permitted Investment may be structured as a merger, consolidation or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent amalgamation so long as (i) no Event of Default exists when Borrower or Guarantor shall remain the surviving entity after giving effect to such agreement is entered into by Borrowertransaction, (ii) such Borrower shall have provided Bank with a copies of the proposed merger, consolidation or amalgamation agreement does not give such Person the right and any other material documents or deliverables to claim any fee, payment be entered into or damages from any parties, other than from Borrower or Borrower’s investors, provided in connection with a sale therewith at least five (5) days prior to the anticipated date of Borrower’s stock or assets pursuant to or resulting from an assignment for consummation of the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidationproposed transaction, and (iii) Borrower notifies Bank in advance of entering into the entity subject to such an agreement (providedmerger, the failure to give such notification shall consolidation or amalgamation is not be deemed a material breach subject to any Lien (other than the first-priority Liens granted in favor of this AgreementBank and other Liens which constitute “Permitted Liens” hereunder).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) a Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of a Borrower in which a Borrower is not the surviving entity; provided, however, that each Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of such Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower Borrowers or Borrower’s Borrowers’ investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Borrowers notify Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person Person, except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with total cash consideration, for all such transactions (including assumption of liabilities) transactions, does not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000 during 250,000.00) in any fiscal year, year of Borrower; (iib) such transactions are accretive to Borrower; (c) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such the transactions, (iii) such transactions do not result in a Change in Control, ; and (ivd) Borrower is the surviving legal entity; . A Subsidiary may merge or consolidate into another Subsidiary (bprovided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) the Obligations are repaid in full concurrently or with the closing of any merger (or consolidation of into) Borrower in which provided Borrower is not the surviving legal entity; provided, howeverand as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale excess of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors Two Hundred Fifty Thousand Dollars (including, without limitation, Bank$250,000.00), foreclosure, bankruptcy except to the extent any such break-up or similar liquidationfees, payments or damages are funded solely from cash proceeds received by Borrower from the third party to any such transaction, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrowera Loan Party or of a Loan Party into another Loan Party), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock Capital Stock or property of another Person Person, or a division, line of business, or business unit of another Person, in each case except where (a) each of the following conditions is applicable: (i) such transaction either satisfies the consideration paid in connection with such transactions requirements of clause (including assumption a) of liabilities) does not in the aggregate exceed $250,000 during any fiscal yeardefined term “Approved Acquisition” or is an Unrestricted Acquisition, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full and this Agreement is terminated concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not. No Loan Party shall, without Bank’s prior written consent, enter into any binding contractual arrangement with any investment banker, business broker, or similar Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any Loan Party or the sale of all or substantially all of any Loan Party’s assets (any such agreement without Bank’s prior written consent so long as agreement, an “Investment Banker Agreement”) unless (iw) no Event of Default exists when such agreement Investment Banker Agreement is entered into by Borrower, (iisuch Loan Party,(x) such agreement Investment Banker Agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorscounterparty the right, in connection with a sale of Borrowera Loan Party’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrowersuch Loan Party’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, to claim any fee, payment or damages from any parties, other than from a Loan Party or such Loan Party’s investors, and (iiiy) Borrower such Loan Party notifies Bank in advance of entering into such an agreement Investment Banker Agreement and provides a copy of the Investment Banker Agreement to Bank. Notwithstanding anything herein to the contrary, sub- clause (provided, x) of the failure to give such notification immediately preceding sentence shall not apply to a contractual arrangement described in such sentence if such arrangement includes a provision that specifically states that any fees, damages, or payments (other than payments made in the ordinary course of business as reimbursements for expenses) owed to (i) any investment bank, other advisor, or agent, or (ii) the Person acquiring Borrower or merging with Borrower, shall: (x) only be deemed a material breach earned, due, and payable after the indefeasible payment in full of all of Borrower’s Obligations (other than inchoate indemnity obligations) under this Agreement); (y) be expressly acknowledged by the party to whom they are owed as being junior to the Obligations; and (z) name Bank as an express third party beneficiary of such provisions.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where Person; provided that a Subsidiary may merge or consolidate into another Subsidiary (aprovided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) each of or with (or into) Borrower provided Borrower is the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages in excess of One Hundred Thousand Dollars ($100,000.00) from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, BankCollateral Agent and/or the Lenders), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, or a division, line of business, or business unit of another Person, in each case except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full and this Agreement is terminated concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that . Borrower shall not, without Bank’s prior written consentconsent (which consent shall not be unreasonably withheld), enter into any binding contractual arrangement with any investment banker, business broker, or similar Person to attempt to facilitate a merger or acquisition of Borrower or Borrower; provided however, Borrower may enter into ’s assets (any such agreement without Bank’s prior written consent so long as agreement, an “Investment Banker Agreement”); unless (i) no Event of Default exists when such agreement Investment Banker Agreement is entered into by Borrower, (ii) such agreement Investment Banker Agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorscounterparty the right, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, Investment Banker Agreement and provides a copy of the failure Investment Banker Agreement to give such notification shall not be deemed a material breach of this Agreement)Bank.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower, or mergers of a Borrower into another Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such transactions, (iii) such transactions do would not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s 's prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s 's investors, in connection with a sale of Borrower’s 's stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s 's creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. (a) Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization Person, except that if immediately after giving effect thereto no Event of Default shall have occurred and be continuing (other than mergers or consolidations and a Responsible Officer provides to Bank certification to that effect), (i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Person may merge into any Subsidiary of the Borrower in a transaction in which the surviving entity is a Subsidiary into another Subsidiary or into Borrower)and (if any party to such merger is a Guarantor) is a Guarantor, or acquire(iii) any Transfer permitted by Section 7.1(vi) shall be permitted, and (iv) any transfer permitted by clause (c) shall be permitted. Following any such transaction, Borrower shall provide such financial statements related thereto as Bank may reasonably request. (b) Acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock of property of another Person (other than the Borrower or any Subsidiary of the Borrower), except that any transaction permitted by clause (c) shall be permitted. (c) Notwithstanding clauses (a) and (b), the Borrower may acquire, or permit any of its Subsidiaries to acquire, including by way of merger, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: Person, provided that (i) the Person acquired pursuant to such transaction is engaged solely in, or the property acquired pursuant to such transaction is used in, a business similar or related to the business engaged in by the Borrower as of the Closing Date, (ii) the aggregate amount of cash consideration paid by the Borrower or such Subsidiary in connection with all such transactions consummated during the term of this Agreement (including assumption of liabilitiesexcluding any principal or interest paid on any seller note) does shall not in the aggregate exceed $250,000 30,000,000, (iii) the Borrower shall obtain the prior written consent and approval of the board of directors of the Person acquired, or the Person whose property is acquired, pursuant to such transaction, (iv) if such transaction is effected by way of merger, the Borrower or a Subsidiary is the ultimate surviving entity of such transaction (even if this is not the case during any fiscal yearinterim steps of a multiple stage transaction), (iiv) there is no change in any Responsible Officer of the Borrower immediately after giving effect to, and solely as a result of, such transaction, and (vi) no Event of Default has occurred, is shall have occurred and be continuing or would exist immediately after giving effect to such transactionstransaction (and a Responsible Officer provides to Bank certification to that effect). Following any such transaction, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)provide financial statements related thereto.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person Person; except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does do not in the aggregate exceed One Hundred Thousand Dollars ($250,000 100,000) during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; . A Subsidiary may merge or consolidate into another Subsidiary (bprovided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) the Obligations are repaid in full concurrently or with the closing of any merger (or consolidation of into) Borrower in which provided Borrower is not the surviving legal entity; provided, howeverand as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale excess of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors Two Hundred Fifty Thousand Dollars (including, without limitation, Bank$250,000), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where Person, other than Permitted Acquisitions. A Subsidiary may merge or consolidate into another Subsidiary (aprovided such surviving Subsidiary is a Loan Party hereunder) each of or with (or into) Borrower provided Borrower is the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with (a) any Person to attempt to facilitate that would result in a merger or acquisition of Borrower; provided howeverChange in Control, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any partiesBorrower in excess of Five Hundred Thousand Dollars ($500,000.00), other than from (iii) such contractual arrangement provides that the Obligations will be repaid in full in cash upon consummation of the Change of Control, and (iv) Borrower notifies Collateral Agent in advance of entering into such an agreement, or Borrower’s investors, (b) an investment bank providing for a specific mandate to attempt to facilitate a Change in connection Control with a sale full repayment of Borrower’s stock the Obligations unless (i) no Event of Default exists when such agreement is entered into by Xxxxxxxx, (ii) except for reasonable out-of-pocket costs and expenses not to exceed Three Hundred Thousand Dollars ($300,000) in the aggregate (or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Banka greater amount approved by Collateral Agent in writing), foreclosure, bankruptcy Borrower shall not pay (or similar liquidationbe obligated to pay) any cash fees to such Person unless such fees are conditioned upon the consummation of a Change of Control transaction in which the Obligations are paid in full, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (agreement; provided, the failure to give however, so long as no Event of Default exists when such notification agreement is entered into by Borrower, a binding contractual arrangement with an investment bank providing for a general strategic review mandate shall not be deemed prohibited under this clause (b) unless and until such bank is provided a material breach of this Agreement)specific mandate to attempt to facilitate a Change in Control, in which case clause (b) above shall apply.”

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with total cash consideration, for all such transactions (including assumption of liabilities) does not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000 during 250,000) in any fiscal year, year of Borrower; (iib) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such the transactions, (iii) such transactions do not result in a Change in Control, ; and (ivc) the applicable Borrower or, subject to Section 6.14, a merger subsidiary thereof, is the surviving legal entity. A Subsidiary may merge or consolidate into another Subsidiary (provided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) or with (or into) Borrower provided Borrower is the surviving legal entity; , and as long as no Event of Default is occurring prior thereto or (b) arises as a result therefrom. Without limiting the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; providedforegoing, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, Borrower and (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with total cash consideration, for all such transactions (including assumption of liabilities) transactions, does not in the aggregate exceed Five Hundred Thousand Dollars ($250,000 during 500,000.00) in any fiscal year, year of Borrower; (iib) no Event of Default has occurred, is continuing or would exist after giving effect such transactions are accretive to such transactions, Borrower; (iiic) such transactions do not result in a Change in Control, ; (d) no Event of Default has occurred and is continuing or would exist after giving effect to the transactions; and (ive) Borrower is the surviving legal entity; . A Subsidiary may merge or consolidate into another Subsidiary (bprovided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) the Obligations are repaid in full concurrently or with the closing of any merger (or consolidation of into) Borrower in which provided Borrower is not the surviving legal entity; provided, howeverand as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feebreak-up or similar fees, payment payments or damages from any parties, other than from Borrower or Borrower’s investorsany of its Subsidiaries in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate as a result of any failure to proceed with or close such merger or acquisition, in connection with a sale of Borrower’s stock or assets pursuant except to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy extent any such break-up or similar liquidationfees, payments or damages are to be funded solely from cash proceeds received by Borrower from a third party and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided provided, however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), ) or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 1,000,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, provided that the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 100,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s 's investors, in connection with a sale of Borrower’s 's stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s 's creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 [***] during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist immediately after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than Surviving Obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided. TheRealReal, however, that Inc. LSA 12 Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person (such as a broker or investment banker) to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by BorrowerBorrower (or, if an Event of Default does then exist, such Person agrees to defer any compensation owed to it pursuant to the contractual arrangement until after Bank has been repaid in full), (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided. Notwithstanding the foregoing, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Section 7.3 of the Loan Agreement reads as follows: Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, except for mergers or acquisitions involving Borrower where (a) each all of the following conditions is applicableare satisfied: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearcase of a merger, the Borrower is the surviving corporation in the merger, (ii) no Event of Default has occurredthe acquisition, or the other party to the merger, is continuing in the same or would exist related lines of business to that of the Borrower, (iii) the transaction will not, in Bank’s good faith business judgment, adversely affect the Collateral or Bank’s security interest therein or the Borrower’s financial condition, and both before and after giving effect to such transactionstransaction Borrower is and will be in compliance with all financial covenants, (iiiiv) such transactions do not no Default or Event of Default exists or will occur as a result in a Change in Controlof the transaction, (v) at the closing of the transaction there are no Obligations outstanding under the Committed Revolving Line, and (iv) Borrower is the surviving entity; or (bvi) the Obligations are repaid in full concurrently with aggregate of the closing of any merger or consolidation of consideration paid by Borrower in which Borrower is for all such transactions after the date hereof does not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate exceed $5,000,000. If a merger or acquisition occurs pursuant to the foregoing exception to the prohibition against mergers and acquisitions, then Bank shall not be required to make any Credit Extensions under the Committed Revolving Line until Borrower has supplied Bank, and Bank shall have had a reasonable opportunity to review, such financial and other information concerning the transaction as Bank shall request in order to confirm the satisfaction of Borrower; provided howeverthe foregoing conditions to such exception. Notwithstanding the foregoing, Borrower AMSI may enter merge or consolidate into any such agreement without Bank’s prior written consent so AMI as long as (i) no Default or Event of Default exists when such agreement is entered into by Borrowerprior thereto or arises therefrom, and a Subsidiary (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from AMSI) may merge or consolidate into another Subsidiary or into Borrower as long as no Default or Borrower’s investors, in connection with a sale Event of Borrower’s stock Default exists prior thereto or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)arises therefrom.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)}, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: : (i) the cash consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 SS00,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) } such transactions do not result in a Change in Control, and (iv) } Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does docs not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement ({provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire,, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement arrangements with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, provided the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person Person, except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, for Permitted Acquisitions and (ii) that a Subsidiary may merge or consolidate into another Subsidiary (provided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) or with (or into) Borrower provided Borrower is the surviving legal entity, and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a an acquisition of Borrower (by merger or acquisition of Borrower; provided howeverotherwise), Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feebreakup or similar fees, payment payments or damages from any parties, other than from Borrower or Borrower’s investorsany of its Subsidiaries in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate as a result of any failure to proceed with or close such merger or acquisition, in connection with a except to the extent any such break-up or similar fees, payments or damages are to be funded solely from cash proceeds received by Borrower from the sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidationits equity securities in a transaction not otherwise prohibited hereunder, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, provided however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower)Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person Person, except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with total cash consideration, for all such transactions (including assumption of liabilities) transactions, does not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000 during 250,000.00) in any fiscal year, year of Borrower; (iib) no Event of Default has occurred, occurred and is continuing or would exist after giving effect to such the transactions, (iii) such transactions do not result in a Change in Control, ; and (ivc) Borrower is the surviving legal entity; . A Subsidiary may merge or consolidate into another Subsidiary (bprovided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) the Obligations are repaid in full concurrently or with the closing of any merger (or consolidation of into) Borrower in which provided Borrower is not the surviving legal entity; provided, howeverand as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feebreak-up or similar fees, payment payments or damages from any parties, other than from Borrower or Borrower’s investorsany of its Subsidiaries in excess of One Million Dollars ($1,000,000) in the aggregate as a result of any failure to proceed with or close such merger or acquisition, in connection with a sale of Borrower’s stock or assets pursuant except to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy extent any such break-up or similar liquidationfees, payments or damages are to be funded solely from cash proceeds received by Borrower from a third party, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)agreement.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization Person, unless all Obligations (other than mergers which for the purposes of clarity shall include but not be limited to the payment of the Prepayment Fee) are indefeasibly paid in full in cash contemporaneously with such merger or consolidations of a Subsidiary into another Subsidiary or into Borrower)consolidation, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock stock, shares or property of another Person except where Person. A Subsidiary may merge or consolidate into another Subsidiary (aprovided such surviving Subsidiary is a “co-Borrower” hereunder or has provided a secured Guaranty of Borrower’s Obligations hereunder) each of or with (or into) Borrower provided Borrower is the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal yearsurviving legal entity, (ii) and as long as no Event of Default has occurredis occurring prior thereto or arises as a result therefrom. Without limiting the foregoing, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without BankCollateral Agent’s prior written consent, enter into into, or permit any binding contractual arrangement of its Subsidiaries to enter into, any agreement with any Person to attempt to facilitate a merger merger, consolidation or sale of substantially all of the assets of Borrower or any of its Subsidiaries, or an acquisition by Borrower, or any of Borrower; provided howeverits Subsidiaries, Borrower may enter into any such agreement without Bank’s prior written consent so long as of all or substantially all of the capital stock, shares or property of another Person, unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any feefees, payment payments or damages from any parties, other than from Borrower or Borrower’s investorsany of its Subsidiaries in an amount of Two Hundred Fifty Thousand Dollars ($250,000.00) or more in the event of the failure or inability of Borrower or any of its Subsidiaries, in connection with a as applicable, to consummate such merger, consolidation, sale of Borrower’s stock assets or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidationacquisition, and (iii) Borrower notifies Bank Collateral Agent in advance of entering into such an agreement. If Collateral Agent’s consent is needed for such agreement solely because such agreement is not compliant with part (providedii) of the immediately preceding sentence, the failure to give such notification Collateral Agent shall not unreasonably withhold or delay its consent to such agreement if such agreement also provides that all Obligations of the Borrower shall be deemed a material breach indefeasibly paid in full in cash contemporaneously with the closing of this Agreement)such merger, consolidation, sale of assets or acquisition from the proceeds of such transaction.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement). Notwithstanding the above, Borrower shall be permitted to close the Redpoint Transaction, subject to the express conditions that (1) it shall be a condition to the closing of the Redpoint Transaction that Redpoint provide Bank with an Unconditional Guaranty (the “Redpoint Guarantee”), a Third Party Security Agreement (the “Redpoint Security Agreement”), and corporate resolutions authorizing the execution and delivery of the Redpoint Gurantee and the Redpoint Security Agreement (the “Resolutions”, and together with the Redpoint Guarantee and the Redpoint Security Agreement, the “Redpoint Loan Documents”), in form and substance satisfactory to Bank, pursuant to which Redpoint shall unconditionally guarantee all Obligations of Borrower and shall grant Bank a first priority security interest in all of Redpoint’s assets, and the Redpoint Loan Documents shall be duly executed by Redpoint simultaneously with the closing of the Redpoint Transaction; (2) upon execution of the Redpoint Loan Documents, Bank shall have a valid, first priority security interest in all the assets of Redpoint; (3) simultaneously with the closing of the Redpoint Transaction, Redpoint shall receive gross proceeds of at least $20,000,000 from the sale or issuance of Redpoint’s equity securities at a pre-money valuation for Borrower and Redpoint (as a combined entity) of not less than $60,000,000 (the “Redpoint Financing”); and (4) simultaneously with the closing of the Redpoint Transaction, any and all of Redpoint’s depository, operating, and investments accounts shall be held at Bank.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person Person, or a division, line of business, or business unit of another Person, in each case except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 100,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entityentity in the case of any merger or consolidation of Borrower; or (b) the Obligations are repaid in full and this Agreement is terminated concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that . Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any investment banker, business broker, or similar Person to attempt to facilitate a merger or acquisition of Borrower or Borrower; provided however, Borrower may enter into ’s assets (any such agreement without Bank’s prior written consent so long as agreement, an “Investment Banker Agreement”); unless (i) no Event of Default exists when such agreement Investment Banker Agreement is entered into by Borrower, and (ii) such agreement Investment Banker Agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investorscounterparty the right, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) to claim any fee, payment or damages from any parties, other than from Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement)or Borrower’s investors.

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, such consent not to be unreasonably withheld, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit pennit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit pennit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 500,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations (other than inchoate indemnity obligations) are repaid in full concurrently with the closing of any merger or consolidation of Borrower which does not meet the conditions set forth in which Borrower is not the surviving entityclause (a) above; provided, provided however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement arrangement without Bank’s prior written consent so long as (i) no Event of Default exists when such agreement arrangement is entered into by Borrower, (ii) such agreement arrangement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement arrangement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).

Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person except where (a) each of the following conditions is applicable: (i) the consideration paid in connection with such transactions (including assumption of liabilities) does not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity; or (b) the Obligations are repaid in full concurrently with the closing of any merger or consolidation of Borrower in which Borrower is not the surviving entity; provided, however, that Borrower shall not, without Bank’s prior written consent, enter into any binding contractual arrangement (such as an engagement letter) with any Person (such as a broker or investment bank) to attempt to facilitate a merger or acquisition of Borrower; provided however, Borrower may enter into any such agreement without Bank’s prior written consent so long as unless (i) no Event of Default exists when such agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any fee, payment or damages from any parties, other than from Borrower or Borrower’s investors, in connection with a sale of Borrower’s stock or assets pursuant to or resulting from an assignment for the benefit of creditors, an asset turnover to Borrower’s creditors (including, without limitation, Bank), foreclosure, bankruptcy or similar liquidation, and (iii) Borrower notifies Bank in advance of entering into such an agreement (provided, the failure to give such notification shall not be deemed a material breach of this Agreement).