Common use of Restriction on Fundamental Changes Clause in Contracts

Restriction on Fundamental Changes. The Company shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the Company, or, in the case of a Subsidiary of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the Company, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company Holdings and Borrower shall not, not and shall not cause or permit Borrower’s Subsidiaries to directly or indirectly: (a) amend, modify or waive any term or provision of its Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement unless required by law except if such amendment, modification, or waiver could not reasonably be expected to have an adverse effect on Co-Administrative Agents or Lenders or affect in any respect any Liens in favor of Agent and Lenders; (b) enter into any transaction of merger or consolidationconsolidation except (i) pursuant to a Permitted Acquisition, or (ii) upon not less than five (5) Business Days prior written notice to Agent, any Subsidiary of Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Subsidiary was a Guarantor prior to such merger, the surviving Subsidiary is a Guarantor; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); provided that any liquidation, discontinue its wind-up or dissolution of Transaction Network Services (Bermuda) Ltd. shall be permitted hereunder so long as any assets held by such entity at the time of such liquidation, wind-up or dissolution are disposed of in accordance with Section 3.7 hereof; or (d) acquire by purchase or otherwise all or any substantial part of the business or convey, lease, sell, transfer or otherwise dispose assets of, in one transaction or series of transactionsa business line, unit or division of, any other Person except pursuant to the Acquisition or a Permitted Acquisition or any Investment permitted under Section 3.3(p) or Section 3.3(q). Notwithstanding the foregoing, Borrower or its Subsidiaries may acquire all or substantially all of the property of assets or Stock of, or a business line, unit or division of, any Person (the Company, or, in the case of a Subsidiary of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i“Target”) the Company shall be the continuing corporation (in the case of each case, a merger or consolidation), or the successor, if other than the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume “Permitted Acquisition”) subject to the satisfaction of the Agent the due and punctual performance and observance of all each of the covenants and obligations contained in this Agreement and the Notes to be performed following conditions or waiver thereof by the Company, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.Requisite Lenders:

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries (except pursuant to the Merger) to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, America or any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Term Loan Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Neither the Company shall not, and shall not permit nor any of its Subsidiaries to, enter into shall consummate any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property Company’s and its Subsidiaries’ assets, taken as a whole (each such transaction a “Fundamental Change”), whether now or hereafter acquired, except that (i) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation), (ii) any liquidation, dissolution or winding-up (including by “striking off” or similar proceeding) of any Subsidiary of the Company, after payments to its creditors, into the Company or another Subsidiary of the Company (or, in the case of a “striking off” [[NYCORP:3493733v14:3138D: 11/19/2014--06:51 PM]] or similar proceeding, to the creditors or other applicable Governmental Authority), as applicable, and (iii) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, [1st Amendment] (B) in the case of any merger of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company shall be the continuing surviving corporation (except that such other Person may be the surviving corporation if (v) it is a Delaware corporation newly formed by the Company for the purpose of reincorporating the Company in the case State of Delaware, and prior to such merger has no assets or liabilities other than nominal assets and liabilities incidental to its existence as a merger or consolidationDelaware Corporation, (w) except for the nominal assets and liabilities referred to in the preceding clause (v), or the successor, if other than the Company, assets and liabilities of such surviving corporation immediately after such merger shall be a corporation organized and existing under the laws same as those of the United States of AmericaCompany immediately prior to such merger, any State thereof or the District of Columbia and (x) such surviving corporation shall expressly assume have executed and delivered to the satisfaction Administrative Agent an instrument reasonably satisfactory to the Administrative Agent acknowledging and agreeing to be bound by the obligations of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in Company under this Agreement and the Notes to be performed by the Companyother Loan Documents), (iiy) no Default shall have occurred and be continuing either immediately before or immediately after giving effect to such merger or consolidation, no Default and (z) the Lenders shall have occurred received all documentation and be continuingother information in respect of the surviving corporation in such merger required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, and (iii) on including the USA PATRIOT Act to the extent request in writing by such Lenders at least 10 days prior to the effective date of such merger, and (C) in the case of any such merger or consolidation occurring on or after of any Subsidiary of the Restatement DateCompany, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, surviving corporation shall be satisfied; and provided, further that any majority-owned or become as a result thereof a Subsidiary of the Company may merge into or conveyand (D) [1st Amendment] except in the case of a newly formed Delaware corporation referred to in the preceding clause (B), sell, lease or transfer all or such transaction shall be with a Person in a line of business substantially all similar to that of its assets to, the Company or any other majority-owned Subsidiary and its Subsidiaries as of the Company. Pro forma compliance with Section 5.03 shall be determined in Closing Date or a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBTline of business similar, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with related or in contemplation of such merger incidental thereto or consolidation and interest expense for the twelve month period ending on the date of such determination in respect a logical extension thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the Company, or, in the case of a Subsidiary of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the Company, shall (A) be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia Columbia, (B) deliver all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti- Money Laundering Laws, including the PATRIOT Act, requested by any Lender, (C) deliver to the Agent documents of the type described in Section 3.01(h)(ii), (iii), (iv) and (v) and (D) such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the Company, and (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that (x) any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined , (y) any Subsidiary may merge, consolidate, amalgamate, liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or discontinue its business and (z) any Subsidiary may convey, lease, sell or transfer its assets, in each case so long as doing so does not result, directly or indirectly, in the disposition (in one or a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with series of transactions) of all or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction substantially all of the Agentassets of the Company and its Subsidiaries, taken as a whole.

Restriction on Fundamental Changes. The Company Holdings and Borrower shall not, not and shall not cause or permit Borrower’s Subsidiaries to directly or indirectly: (a) amend, modify or waive any term or provision of its Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement unless required by law except if such amendment, modification, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and Lenders; (b) enter into any transaction of merger or consolidationconsolidation except (i) pursuant to a Permitted Acquisition, or (ii) upon not less than five (5) Business Days prior written notice to Agent, any Subsidiary of Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Subsidiary was a Guarantor prior to such merger, the surviving Subsidiary is a Guarantor; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the Company, or, in the case of a Subsidiary of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger liquidation, wind-up or consolidation dissolution of Transaction Network Services (Bermuda) Ltd. shall be permitted if hereunder so long as any assets held by such entity at the time of such liquidation, wind-up or dissolution are disposed of in accordance with Section 3.7 hereof; or (id) acquire by purchase or otherwise all or any substantial part of the Company shall be business or assets of, or a business line, unit or division of, any other Person (as used herein, an “Acquisition” and such other Person, the continuing corporation “Target”) except pursuant to a Permitted Acquisition or any Investment permitted under Section 3.3(p). Notwithstanding the foregoing, Borrower or its Subsidiaries may make an Acquisition (in the case of each case, a merger or consolidation), or the successor, if other than the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume “Permitted Acquisition”) subject to the satisfaction of the Agent the due and punctual performance and observance of all each of the covenants and obligations contained in this Agreement and the Notes to be performed following conditions or waiver thereof by the Company, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.Requisite Lenders:

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries (except pursuant to the Merger) to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Term Loan Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company shall not, and shall not permit Neither any of its Subsidiaries to, Borrower nor any other Loan Party will: (a) enter into any transaction of merger or consolidation, or ; (b) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or except that SDI shall cease operations as promptly as practicable; (c) convey, sell, lease, sellsublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any substantial part of the property of the Company, or, in the case of a Subsidiary of the Company, the its business or property assets, or the capital stock of the Company and any of its Subsidiaries taken as a wholeSubsidiaries, whether now owned or hereafter acquired; provided or (d) acquire by purchase or otherwise all or any substantial part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person, except that any such merger or consolidation shall be permitted if Borrower may acquire assets from another Person pursuant to a Bulk Contract Purchase so long as (i) at the Company shall be the continuing corporation (in the case time of a merger or consolidation), or the successor, if other than the Company, shall be a corporation organized any such transaction and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the Company, (ii) immediately after giving effect to such merger or consolidationthereto, no Default or Event of Default shall have occurred and be continuing, ; (ii) the applicable Seller shall have agreed in writing to be bound by a guarantee or replacement clause substantially similar to that set forth in Schedule 7.6; and (iii) on Lender shall have completed such due diligence in respect of the effective date portfolio of Contracts to be acquired pursuant to such Bulk Contract Purchase (or series of related such transactions) as it may request and Lender shall have given its prior written consent to the consummation thereof by the applicable Borrower, such consent not to be unreasonably withheld or delayed; provided that the requirements of this clause (iii) need not be satisfied in the case of (A) any such merger Bulk Contract Purchase (or consolidation occurring on series of related such transactions) which is for an aggregate amount of $250,000 or after less, or (B) any such Bulk Contract Purchase (or series of related such transactions) which is for an aggregate amount in excess of $250,000 but equal to or less than $500,000, if the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary average initial term of the Company may merge into Contracts included in such Bulk Contract Purchase is 36 months or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agentmore.

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries (except pursuant to the Merger) to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, America or any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Bridge Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries (except pursuant to the Merger) to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Bridge Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the business or property of the CompanyBorrower, or, in the case of a Subsidiary of the CompanyBorrower, the business or property of the Company Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided PROVIDED that any disposition of less than 15% of Consolidated Net Tangible Assets shall not be deemed to be a substantial part and PROVIDED FURTHER that any such merger or consolidation shall be permitted if (i) the Company Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the CompanyBorrower, shall be a corporation organized and existing under the laws of the United States of America, 71 42 America or any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the CompanyBorrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further PROVIDED FURTHER that any majoritywholly-owned Subsidiary of the Company Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any other majority-wholly owned Subsidiary of the CompanyBorrower. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense Expense, Consolidated EBT, Consolidated Gross Rental Expense, and Consolidated EBTEBITDAR, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company (a) Neither RAIT OP, RAIT SPE nor any SPE Subsidiary shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation without the prior written consent of the Required Lenders, which consent may be withheld by the Required Lenders in their respective sole and absolute discretion. RAIT shall not enter into any merger or consolidation unless (i) RAIT is the surviving entity, (ii) the nature of RAIT's business following such merger or consolidation shall remain substantially the same as the nature of RAIT's business immediately prior to such merger or consolidation, (iii) RAIT, as the surviving entity, shall, at the time of such merger or liquidateconsolidation and at all times thereafter, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, be and remain in one transaction or series of transactions, all or substantially compliance with all of the property terms and conditions of this Agreement including, without limitation, the CompanyFinancial Covenants set forth in Section 5.8, or(iv) at the time of such merger or consolidation, RAIT shall deliver to the Administrative Agent a fully completed Continuing Compliance Certificate, together with a proforma (with respect to the four (4) consecutive calendar quarters immediately following such merger or consolidation) cash flow and Financial Covenant compliance projection, in form, content and detail reasonably acceptable to the case Administrative Agent, (v) RAIT, as the surviving entity, shall execute and deliver to the Administrative Agent at the time of such merger or consolidation a Subsidiary ratification and reaffirmation of all its Obligations under this Agreement and the Companyother Loan Documents, in form, content and detail acceptable to the business Administrative Agent, (vi) no Default or property Event of Default shall have occurred and be continuing at the Company time of such merger or consolidation, and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any (vii) such merger or consolidation shall be permitted if (i) the Company shall be the continuing corporation (accomplished in the case of a merger or consolidation)accordance with all terms, or the successor, if other than the Company, shall be a corporation organized conditions and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed restrictions being imposed thereon by the Company, (ii) immediately after giving effect Securities and Exchange Commission and/or any other applicable regulatory agency having jurisdiction with respect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.

Restriction on Fundamental Changes. The Company shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the Company, or, in the case of a Subsidiary of the Company, the business or property of the Company and its Subsidiaries taken as a whole, whether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Company shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the Company, shall be a corporation organized and existing under the laws of the United States of America, America or any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the Company, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Restatement Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Company or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Company may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Company or any other majority-owned Subsidiary of the Company. Pro forma compliance with Section 5.03 shall be determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect indebtedness incurred in connection with or in contemplation of such merger or consolidation and interest expense for the twelve month period ending on the date of such determination in respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.