Common use of Distributions; Investments Clause in Contracts

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock of former or current employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, and make payments in cash for any fractional shares upon such conversion or in connection with the exercise of warrants or similar securities in an aggregate amount not to exceed Fifty Thousand Dollars ($50,000.00) (or One Hundred Thousand Dollars ($100,000.00) after a Qualified IPO), (ii) Borrower may pay dividends solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; , and (iv) Borrower may repurchase stock of its former or current employeesother dividends, officers, directors or consultants pursuant to Borrower’s right of first refusal distributions and payments in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not to exceed Eight Two Hundred Fifty Thousand Dollars ($250,000.00) (or Five Hundred Thousand Dollars ($800,000.00500,000.00) per fiscal yearafter a Qualified IPO); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, provided that Borrower may (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; , (iii) Borrower may repurchase the stock of former or current employeesdirectors, officers, directors employees or consultants pursuant to employee stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchasepurchase plans, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase restricted stock of its former agreements, rights or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws or other similar agreements so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000) per fiscal year, or (iv) repurchase the stock of existing investors of Borrower other than pursuant to employee stock purchase plans, restricted stock agreements, rights of first refusal or other similar agreements in an aggregate amount not to exceed Ten Million Dollars ($10,000,000) in the aggregate during the term of this Agreement so long as (x) an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, (y) immediately prior to such repurchase, Borrower is EBITDA positive on a trailing twelve (12) month basis, and (z) immediately after giving effect to any such repurchase, Borrower has cash of at least Twenty Five Million Dollars ($25,000,000); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases repurchase does not exceed in the aggregate of One Hundred Fifty Thousand Dollars ($150,000.00100,000) per fiscal year; and (iv) Borrower may institute a stock repurchase stock of its former or current employees, officers, directors or consultants program pursuant to which it repurchases outstanding shares of Borrower’s right of first refusal in Borrower’s bylaws common stock so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, repurchase and provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal year500,000; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, ; provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, ; (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does do not exceed One Five Hundred Fifty Thousand Dollars ($150,000.00500,000.00) per fiscal yearin the aggregate in any six (6) month period; and (iv) Borrower may repurchase stock purchase fractional shares of its former capital stock arising out of stock dividends, splits or current employeescombinations or business combinations, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does do not exceed Eight Hundred Fifty Thousand Dollars ($800,000.0050,000.00) per in the aggregate in any fiscal year; and (v) any Borrower may pay dividends or make distributions to any other Borrower, or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, partnership, membership, or other ownership interest or other equity securities, provided that Borrower may (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officersdirectors, directors officers or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) 200,000.00 per fiscal year, (iv) make payments in lieu of the issuance of fractional shares and (v) pay any dividends and make any distributions to its stockholders in any amount so long as Borrower provides to Bank prior to the making of any such dividend or distribution (A) financial statements and a written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (after giving effect to any such dividend) Borrower and its Subsidiaries are projected to have Liquidity of at least $75,000,000.00 immediately following the payment of such dividend or distribution and (B) evidence satisfactory to Bank that no Event of Default has occurred and is continuing or would exist after giving effect to any such dividend or distribution (including, without limitation, evidence satisfactory to Bank that Borrower will be in compliance with the financial covenant set forth in Section 5.10 after giving effect to such dividend or distribution); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so, in each case, other than Permitted Investments.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may purchase, cancel or retain capital stock in satisfaction of withholding tax obligations in connection with equity-based compensation plans; (iv) Borrower may purchase fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations or conversion of convertible securities; (v) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements or other similar agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases repurchase does not exceed One in the aggregate of Two Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00250,000) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so. For the avoidance of doubt, any reference to “capital stock” in this Agreement shall not include any Indebtedness convertible into equity securities of the Borrower.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; and (iii) Borrower may repurchase the stock of current or former or current employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00A) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided (B) prior to any such repurchase that (1) would result in the aggregate amount of all such repurchases does exceeding $500,000 in any fiscal year or (2) is to be made in any fiscal year when the aggregate amount of such repurchases exceeds $500,000 in such fiscal year), Borrower provides evidence to Bank (satisfactory to Bank in Bank’s sole discretion) that, immediately after giving effect to such repurchase and for the twelve (12) month period following the consummation of such repurchase, Borrower shall be in compliance with the financial covenants set forth in Section 6 of this Agreement, and (C) such repurchases do not exceed Eight Hundred Thousand Dollars (exceed, in the aggregate, $800,000.00) 1,000,000 per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or distributions solely in common capital stock; (iii) Borrower may repurchase the stock of former or current employees, directors, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases repurchase does not exceed One in the aggregate of Seven Hundred Fifty Thousand Dollars ($150,000.00750,000) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time purchases for value of any rights distributed in connection with any stockholder rights plan; (v) purchases of capital stock or options to acquire such repurchase capital stock with the proceeds received from a substantially concurrent issuance of capital stock or convertible securities; (vi) purchases of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise; and would not exist after giving effect to any such repurchase(vii) purchases of fractional shares of capital stock arising out of stock dividends, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal yearsplits or combinations or business combinations; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Co-Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Co-Borrower may pay dividends solely in common stock; and (iii) Co-Borrower may repurchase the stock of former or current employees, officersconsultants, directors or consultants officers pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Two Hundred Fifty Thousand Dollars ($800,000.00250,000) per fiscal year; (iv) make purchases of capital stock arising out of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise; (v) make purchases of fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations or (vi) pay any dividends or make any other distributions to another Co-Borrower (and, for the avoidance of doubt, any Subsidiary of a Co-Borrower may pay any dividends or make any other distributions to a Co-Borrower or a Subsidiary thereof); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock or membership interest provided that Borrower may (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, thereof and may make payments in cash for any fractional shares upon such conversion or in connection with the exercise or conversion of warrants or other securities; (ii) Borrower may pay dividends solely in common stockequity interests; and (iii) Borrower may repurchase the stock of former or current employees, officers, directors directors, employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that and the aggregate amount of all such repurchases does not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so. Notwithstanding the foregoing, dividends paid by Fig to game share investors in the ordinary course of business shall be permitted so long as (i) an Event of Default does not exist at the time of any such dividend and would not exist after giving effect to any such dividend, (ii) such dividend is based upon revenue generated from a game which is the subject of such investment by the game share investors and is paid within one hundred eighty (180) days of receipt of such revenue and (iii) such dividends in the aggregate do not exceed seventy percent (70.0%) of the revenues referred to in (ii).

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, /shares provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock/shares; (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock stock/share repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases repurchase does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000) per fiscal year, (iv) Borrower shall cause and direct Intercompany Borrowers to make regularly scheduled interest payments on the Secured Intercompany Note and otherwise comply therewith, in each case in accordance with the terms thereof and (v) Borrower shall cause and direct Intercompany Borrowers to make regularly scheduled interest payments on the European Credit Note and otherwise comply therewith, in each case in accordance with the terms thereof; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any additional Investment in any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends (other than dividends payable solely in capital stock) or make any distribution or payment in respect of or redeem, retire or purchase any capital stock, provided stock except that Borrower or any Subsidiary may (i) Borrower may convert any repurchase the stock of its convertible securities into other securities pursuant to the terms of such convertible securities current or otherwise in exchange thereofformer employees, officers, directors or consultants, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock of current or former or current employees, officers, directors or consultants pursuant to stock repurchase agreements so long as by the cancellation of indebtedness owed by such former employees regardless of whether an Event of Default does not exist at exists, (iii) purchase for value of any rights distributed in connection with any stockholder rights plan, (iv) purchases of capital stock or options to acquire such capital stock with the time proceeds received from a substantially concurrent issuance of such repurchase capital stock or convertible securities; (v) purchases of capital stock pledged as collateral for loans to employees, officers or directors; (vi) purchases of capital stock in connection with (x) the exercise of stock options or stock appreciation rights or (y) the satisfaction of withholding tax obligations; in each case, by way of cashless (or, “net”) exercise; (vii) cash payments in lieu of the issuance of fractional shares upon conversion of convertible securities; and would not exist after giving effect (viii) repurchases of stock pursuant to such repurchase, provided that the aggregate amount rights of all first refusal in Borrowers’ bylaws; so long as such repurchases does and purchasers (described in (i) through (viii)) do not exceed One Two Hundred Fifty Thousand Dollars ($150,000.00250,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stockstock (or in cash in respect of fractional shares thereof); (iii) Borrower may repurchase the stock of current or former or current employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Three Hundred Fifty Thousand Dollars ($150,000.00300,000) per fiscal year; and (iv) Borrower may pay dividends or make a distribution to its stockholders or repurchase capital stock of its former or current employeesUltimate Parent for purposes of maintaining such capital stock as treasury stock, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase provided immediately before and would not exist after giving effect to any such dividend or distribution or stock repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Credit Parties have at least Twenty Five Million Dollars ($800,000.0025,000,000) per fiscal yearon deposit in Collateral Accounts that are subject to a Control Agreement in favor of Bank or otherwise subject to a Lien in favor of Bank; and (v) Subsidiaries of Ultimate Parent may pay dividends to other Subsidiaries of Ultimate Parent provided that a Credit Party is the ultimate recipient of such dividends, or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so,.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock or other equity securities; provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, thereof and make payments in cash in lieu of the issuance of any fractional shares upon such conversion or exchange; (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the capital stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Two Hundred Fifty Thousand Dollars ($150,000.00250,000) per fiscal year; and (iii) Borrower may pay dividends solely in common stock; (iv) Borrower may repurchase stock pay cash in lieu of its former issuing fractional shares; and (v) Borrower may make other payments, distributions, redemptions, retirements, or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws repurchases so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight One Hundred Fifty Thousand Dollars ($800,000.00150,000) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments), or permit any of its Subsidiaries to do so, in each case, other than Permitted Investments.

Distributions; Investments. (a) Directly or indirectly acquire or own any Person, or make any Investment in any Person, other than Permitted Investments and Permitted Acquisitions, or permit any of its Subsidiaries to do so. Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, provided that (i) Borrower may convert or exchange any of its convertible securities into or for other securities pursuant to the terms of such convertible securities or otherwise and may make cash payments in exchange thereoflieu of fractional shares in connection with such conversion or any stock dividend, stock split or combination, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may acquire capital stock in connection with (A) the exercise of stock options or warrants by way of cashless exercise, or (B) satisfaction of withholding obligations related to the exercise of stock options; (iv) in connection with any Permitted Acquisition, the Borrower or any of its Subsidiaries may, (A) receive or accept the return of capital stock of Borrower constituting a portion of the purchase price in settlement of indemnification claims, or (B) make payments or distributions to dissenting stockholders pursuant to applicable law, and (v) Borrower may repurchase the stock of former or current employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases repurchase does not exceed One Hundred Fifty Thousand Dollars (in the aggregate $150,000.00) 250,000 per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, ; provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00100,000) per fiscal year; and (iv) Borrower may repurchase stock pay cash in lieu of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws issuing fractional shares so long as an Event of Default does not exist at the time of any such repurchase payment and would not exist after giving effect to any such repurchase, provided payment; and (v) Borrower may make payments in connection with the retention of equity securities in payment of withholding taxes in connection with equity-based compensation plans to the extent that the aggregate amount net share settlement arrangements are deemed to be repurchases so long as an Event of all such repurchases Default does not exist at the time of such payment and would not exist after giving effect to such payment and provided such payments do not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000) per fiscal year; , or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, ; provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00100,000) per fiscal year; , and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an no Event of Default does not exist at has occurred and is continuing or would result therefrom, Borrower may redeem, retire and/or purchase any or all outstanding shares of its Series A-2 Convertible Preferred Stock, par value $0.0001 per share, on the time terms thereof, following a Change in Control or other event otherwise permitted by this Agreement that requires or permits Borrower to make such redemption, retirement or repurchase under the terms of any the Certificate of Designations for such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal yearshares; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or distributions solely in common stock; and (iii) Borrower may repurchase the stock of former or current employees, officersdirectors, directors officers or consultants pursuant to stock repurchase purchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Five Hundred Fifty Thousand Dollars ($150,000.00500,000) per fiscal year; and (iv) make purchases of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise; (v) make purchases of fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations; and (vi) Borrower may repurchase purchase capital stock or options to acquire such capital stock with the proceeds (provided the amount of its former such proceeds exceeds the sub of such purchases) received from a substantially concurrent issuance of capital stock or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchaseconvertible securities, provided that such purchases do not in the aggregate amount of all such repurchases does not exceed Eight Five Hundred Thousand Dollars ($800,000.00500,000) per fiscal year; year or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, ; provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; (iii) prior to the Capital Raise, Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Million Dollars ($150,000.001,000,000) per fiscal year; and (iv) after the Capital Raise, Borrower may repurchase stock make any open-market purchase or exchange of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws publicly traded equity securities so long as (A) Borrower provides Bank with written notice of the material terms thereof and evidence satisfactory to Bank that Borrower has obtained the necessary consents and approvals thereto, including, without limitation, those of Borrower’s Board of Directors, and (B) an Event of Default does not exist at and the time of any such repurchase purchase or exchange and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Hundred Thousand Dollars ($800,000.00) per fiscal yearthereto; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible equity securities into other equity securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or distributions solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officersdirectors, directors officers or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Two Hundred Fifty Thousand Dollars ($150,000.00250,000.00) per fiscal year; and , (iv) Borrower may repurchase purchase capital stock or options to acquire such capital stock with the proceeds (provided the amount of its former such proceeds exceeds the sum of such purchases) received from a substantially concurrent issuance of capital stock or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws convertible securities so long as an Event of Default does not exist at the time of any such repurchase purchase and would not exist after giving effect to any such repurchasepurchase, provided that the aggregate amount of all such repurchases purchases does not exceed Eight Two Hundred Fifty Thousand Dollars ($800,000.00250,000.00) per fiscal year, (v) Borrower may make purchases of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise, (vi) Borrower may make purchases of fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations, provided that the aggregate amount of all such purchases does not exceed Ten Thousand Dollars ($10,000.00); and (vii) Subsidiaries may make dividends and distributions to Borrower; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments), or permit any of its Subsidiaries to do so, in each case other than Permitted Investments.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, provided that Borrower may (i) Borrower may convert any of its convertible securities into other securities pursuant pay normal monthly dividends in cash to the terms holders of such convertible securities or otherwise in exchange thereofParent Borrower’s Series A Preferred Stock as required by Section 4 of Borrower’s Amended and Restated Certificate of Designations, (ii) Borrower may pay dividends solely in common stock; (iii) Borrower may repurchase the stock Preferences and Rights of former or current employees11% Series A Cumulative Redeemable Perpetual Preferred Stock dated as of July 6, officers, directors or consultants pursuant to stock repurchase agreements 2016 so long as an Event of Default does not exist at the time of any such repurchase dividend and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars dividend; ($150,000.00ii) per fiscal yearpay dividends solely in common stock; and (iviii) Borrower may repurchase the stock of its former or current employees, officers, directors employees or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws stock repurchase agreements so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officers, directors officers or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00100,000.00) per fiscal year; , and (iv) make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of equity interests of Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase payment and would not exist after giving effect to any such repurchasepayment, provided that the aggregate amount of all such repurchases payments does not exceed Eight Hundred Twenty-Five Thousand Dollars ($800,000.00) per fiscal year25,000.00); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, stock provided that (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or distributions solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officersdirectors, directors officers or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Two Hundred Fifty Thousand Dollars ($150,000.00250,000.00) per fiscal year; and , (iv) Borrower may repurchase purchase capital stock or options to acquire such capital stock with the proceeds (provided the amount of its former such proceeds exceeds the sum of such purchases) received from a substantially concurrent issuance of capital stock or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws convertible securities so long as an Event of Default does not exist at the time of any such repurchase purchase and would not exist after giving effect to any such repurchasepurchase, provided that the aggregate amount of all such repurchases purchases does not exceed Eight Two Hundred Fifty Thousand Dollars ($800,000.00250,000.00) per fiscal year, (v) Borrower may make purchases of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise, and (vi) Borrower may make purchases of fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations, provided that the aggregate amount of all such purchases does not exceed Ten Thousand Dollars ($10,000.00); or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries (other than MSC) to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stockstock or membership interest, provided that Borrower may (i) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or make any distribution or payment, in each case solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, officers, directors or consultants (their spouses, trusts, heirs and estates) pursuant to stock repurchase agreements, vesting agreements, restricted stock agreements, option agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchaseor similar agreements, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Two Hundred Fifty Thousand Dollars ($800,000.00250,000.00) per fiscal year, (iv) make payments in lieu of fractional shares in aggregate amount for all such payments not to exceed Ten Thousand Dollars ($10,000.00) per fiscal year; and (v) make distributions to each of its members in an amount necessary to cover each such member’s actual tax liability that is due and payable in the ordinary course of business as a result of income of Borrower attributed to such member, so long as an Event of Default does not exist at the time of any such distribution and would not exist after giving effect to any such distribution; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, ; provided that Borrower may (i) Borrower may (X) convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (iiY) Borrower may pay dividends solely in common stock; and (iiiZ) during a Dividend Trigger Period, Borrower may repurchase the stock of former or current employees, officers, directors employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.0050,000) per fiscal year; and (ivii) Borrower may repurchase stock of its former or current employeesduring a Dividend Trigger Period, officerspay dividends in cash to Mx. Xxxx Xxxxxxxx, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase payment and would not exist after giving effect to any such repurchase, payment; provided further that the aggregate amount of all such repurchases does dividend payments shall not exceed Eight One Hundred Fifteen Thousand Dollars ($800,000.00115,000) per fiscal yearquarter; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, Equity Interests provided that (i) Borrower Representative may convert any of its convertible securities Equity Interests (including warrants) into other securities Equity Interests issued by Borrower Representative pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower Representative may convert Subordinated Debt issued by Borrower Representative into Equity Interests issued by Borrower Representative pursuant to the terms of such Subordinated Debt and to the extent permitted under the terms of the applicable subordination or intercreditor agreement; (iii) Borrower Representative or any Subsidiary thereof may pay dividends solely in common stockEquity Interests of Borrower Representative or such Subsidiary, as applicable; (iiiiv) Borrower Representative may make cash payments in lieu of fractional shares; and (v) Borrower Representative may repurchase the stock of former or current employees, officers, directors or consultants Equity Interests issued by Borrower Representative pursuant to stock repurchase agreements approved by Borrower Representative’s Board so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases does not exceed One Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year; and (iv) Borrower may repurchase stock of its former or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed Eight Five Hundred Thousand Dollars ($800,000.00500,000.00) per fiscal year; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) ), other than Permitted Investments, or permit any of its Subsidiaries to do so.

Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock, provided that Borrower may (i) Borrower may convert any of its convertible securities (including warrants) into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) Borrower may pay dividends or distributions solely in common stock; , (iii) Borrower may repurchase the stock of former or current employees, directors, officers, directors or consultants pursuant to stock repurchase purchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase, provided that the aggregate amount of all such repurchases by Borrower does not exceed One Hundred Fifty Thousand Dollars ($150,000.00100,000) per fiscal year; and , (iv) make purchases of capital stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise, (v) Borrower may repurchase purchase capital stock or options to acquire such capital stock with the proceeds (provided the amount of its former such proceeds exceeds the sub of such purchases) received from a substantially concurrent issuance of capital stock or current employees, officers, directors or consultants pursuant to Borrower’s right of first refusal in Borrower’s bylaws so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchaseconvertible securities, provided that (x) such purchases do not in the aggregate amount of all such repurchases does not exceed Eight One Hundred Thousand Dollars ($800,000.00100,000) per fiscal yearyear and (y) no Event of Default is continuing or would result therefrom; (vi) make cash payments in lieu of the issuance of fractional shares, and (vii) distribute equity securities to employees, officers, or directors on the exercise of their options; or (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.