Common use of Dividends and Certain Other Restricted Payments Clause in Contracts

Dividends and Certain Other Restricted Payments. Borrower shall not, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) or (ii) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”); provided, that the foregoing shall not operate to prevent: (a) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; (b) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, and to the registered holders, of the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and (e) other Restricted Payments in an amount not to exceed the Available Amount so long as both before and after giving effect to such Restricted Payment (i) Borrower shall be in

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interestsstock) or (ii) directly or indirectly purchase, redeem, redeem or otherwise acquire or retire any of its capital stock or (iii) prepay any Indebtedness for Borrowed Money (other equity interests or than the prepayment of the Loans and L/C Obligations in accordance with Section 1.11 hereof and the effecting of any warrantsredemption of such Loans) (such non-excepted dividends, optionsdistributions, or similar instruments to acquire the same (purchases, redemptions, acquisitions, prepayments and retirements being hereinafter collectively referred to herein as “called "Restricted Payments”"); provided, however, that the foregoing shall not apply to or operate to prevent: (a) prevent any Restricted Payments made in any fiscal year of the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; (b) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, if and to the registered holders, of extent that at the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and (e) other time such Restricted Payments in an amount not to exceed the Available Amount so long as both before Payment is made and after giving effect to such Restricted Payment thereto, (i) Borrower no Default or Event of Default shall occur or be incontinuing, (ii) the aggregate amount of all Restricted Payments (other than the Permitted Shareholder Redemptions) made during such fiscal year does not exceed twenty percent (20%) of the Borrower's Net Income for such fiscal year to date and (iii) the aggregate cumulative amount of all Restricted Payments made on and after the date hereof does not exceed $25,000,000.

Dividends and Certain Other Restricted Payments. Borrower The Credit Parties shall not, nor shall it they permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (ia) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) or (iib) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”)same; provided, however, that the foregoing shall not operate to prevent: prevent the following (aall of which are referred to collectively as “Restricted Payments”): (i) the making of dividends or distributions by any Wholly-owned Subsidiary of any Credit Party to Borrower or any Guarantor that is its respective parent entity; corporation, (bii) dividends payable solely in the same class of capital stock of such Person, (iii) the making of regularly scheduled dividends to the Company’s shareholders, provided that (A) no Default or distributions by any Subsidiary that Event of Default has occurred and is not continuing at such time or would be directly or indirectly caused as a Loan Party to any other Subsidiary that is not a Loan Party; result thereof and (cB) such dividends shall be paid out of Net Income, and (iv) the BorrowerCompany’s issuance repurchase of common shares of its capital stock upon on the exerciseopen market or non-scheduled, non-recurring dividends, provided that (A) no Default or Event of Default has occurred and to the registered holdersis continuing at such time or would be directly or indirectly caused as a result thereof on an actual or pro forma basis, of the OCM Warrants in accordance with their terms; (dB) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and (e) other Restricted Payments in an amount not to exceed the Available Amount so long as both before and after giving effect to such Restricted Payment repurchase or dividend, the Borrowers would have a Leverage Ratio on a pro forma basis of at least 0.25:1.00 below the then maximum Leverage Ratio permitted by Section 8.21(i), (iC) Borrower after giving effect to such repurchase or dividend, there shall be inat least $35,000,000 in Unused Revolving Credit Commitments and (D) the aggregate amount for such share repurchase or non-scheduled, non-recurring dividend shall not exceed $5,000,000 for each fiscal year of the Company and $15,000,000 during the term of the facilities.

Dividends and Certain Other Restricted Payments. Borrower shall notNo Loan Party shall, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) of its Subsidiaries to, (ia) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) or ), (iib) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same same, or (c) directly or indirectly pay management fees to any Affiliate of any Loan Party (collectively referred to herein as “Restricted Payments”); ’, provided, however, that the foregoing shall not operate to prevent: : (ai) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; Borrower; (bii) the making payment of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, and to the registered holders, of the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements management fees in an aggregate amount not to exceed $2,000,000 in 250,000 during any fiscal year; year payable to the Majority Shareholder if and (e) other Restricted Payments in an amount not to exceed the Available Amount only so long as both before and no Default exists or will arise after giving effect to such Restricted Payment Payment; (iiii) the payment of Subordinated Debt held by Affiliates to the extent permitted by Section 8.22; and (iv) other Restricted Payments if and so long as (x) the aggregate amount of such Restricted Payments do not exceed $2,000,000 during any fiscal year of the Borrower shall be inand (y) no Default exists or will arise after giving effect to such other Restricted Payment.

Dividends and Certain Other Restricted Payments. Borrower shall not, nor shall it permit The Company will not during any Subsidiary fiscal year (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (ia) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interestsstock) or (iib) directly or indirectly purchase, redeem, redeem or otherwise acquire or retire any of its capital stock or other equity interests or any warrants(such non-excepted dividends, optionsdistributions, or similar instruments to acquire the same (purchases, redemptions, acquisitions and retirements being hereinafter collectively referred to herein as “called "Restricted Payments”"); provided, however, that the foregoing shall not apply to or operate to prevent: (a) prevent any Restricted Payments made in any fiscal year of the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; (b) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, Company if and to the registered holders, of extent that (i) at the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and (e) other time such Restricted Payments in an amount not to exceed the Available Amount so long as both before Payment is made and after giving effect thereto, (ii) no Default or Event of Default shall occur or be continuing, (iii) the aggregate amount of all Restricted Payments (other than the Permitted Shareholder Redemptions) made during such fiscal year does not exceed twenty-five percent (25%) of the Company's Net Income for such fiscal year to such date and (iv) the aggregate cumulative amount of all Restricted Payment (i) Borrower shall be inPayments made on and after the date hereof does not exceed $25,000,000.

Dividends and Certain Other Restricted Payments. Borrower shall notNo Loan Party shall, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) of its Subsidiaries to, (ia) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) ), or (iib) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: : (ai) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; the Borrower; (bii) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) Restricted Payments made in compliance with the Borrower’s issuance of common dividend policy as in effect on the Closing Date or any employee stock upon the exerciseoption plans or employee incentive plans or other compensation arrangements, and or SAR plans; provided that no Default exists or will arise after giving effect to the registered holders, of the OCM Warrants in accordance with their termssuch other Restricted Payment; and (diii) repurchases repurchase by the Borrower pursuant to the terms of employee shares of its capital stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 75,000,000 in any fiscal year; , provided that no Default has occurred and (e) other Restricted Payments in an amount not to exceed the Available Amount so long as both before is continuing or would result from such repurchase and after giving effect to such Restricted Payment (i) repurchase, the Borrower shall be inat that time have not less than $20,000,000 of availability under the Revolving Facility.

Dividends and Certain Other Restricted Payments. Borrower shall not, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) or (ii) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”); provided, that the foregoing shall not operate to prevent: (a) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; (b) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, and to the registered holders, of the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and (e) other Restricted Payments in an amount not to exceed the Available Amount so long as both before and after giving effect to such Restricted Payment (i) Borrower shall be inin compliance with Section 7.12 on a pro forma basis, (ii) the (A) Total Leverage Ratio shall not on a pro forma basis exceed 2.50 to 1.00 and (B) Senior Secured Leverage Ratio shall not on a pro forma basis exceed 2.00 to 1.00, (iii) Liquidity shall be at least $40,000,000 and (iv) no Default or Event of Default shall have occurred and be continuing.

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (ia) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) ), or (iib) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: : (ai) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entitythe Borrower; or (bii) the making of quarterly dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (c) the Borrower’s issuance of common stock upon the exercise, and to the registered holders, of the OCM Warrants in accordance with their terms; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements shareholders in an aggregate amount not to exceed the lesser of (i) $2,000,000 625,000 per fiscal quarter plus one cent ($0.01) per share for each additional share, if any, of common equity sold for cash in any fiscal year; a public or private offering after the Third Amendment Effective Date, and (eii) other Restricted Payments Free Cash Flow, in an amount not to exceed each case determined for the Available Amount immediately preceding fiscal quarter of the Borrower, so long as both before and as, after giving effect to such Restricted Payment the payment thereof, (ix) no Default or Event of Default shall have occurred or be continuing, (y) the Borrower shall be inhave Excess Availability of not less than $18,000,000 after giving effect to the making of such dividends, and (z) the Borrower’s EBITDA for the year to date period ending on the last day of the immediately preceding fiscal quarter shall exceed the Borrower’s projected EBITDA for such period as shown on the 12-month projected financial statements delivered to the Agent in satisfaction of Section 4.9 of the Third Amendment.

Dividends and Certain Other Restricted Payments. Borrower shall not, nor shall it permit any Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary) to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests) or (ii) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same (collectively referred to herein as “Restricted Payments”); provided, that the foregoing shall not operate to prevent: : (a) the making of dividends or distributions by any Subsidiary to Borrower or any Guarantor that is its respective parent entity; ; (b) the making of dividends or distributions by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; ; (c) the Borrower’s issuance of common stock upon the exercise, and to the registered holders, of the OCM Warrants in accordance with their terms; ; (d) repurchases by the Borrower pursuant to the terms of employee stock purchase plans, employee restricted stock agreements or similar arrangements in an aggregate amount not to exceed $2,000,000 in any fiscal year; and and (e) other Restricted Payments in an amount not to exceed the Available Amount so long as both before and after giving effect to such Restricted Payment (i) Borrower shall be inin compliance with Section 7.12 on a pro forma basis, (ii) the (A) Total Leverage Ratio shall not on a pro forma basis exceed 2.50 to 1.00 and (B) Senior Secured Leverage Ratio shall not on a pro forma basis exceed 2.00 to 1.00, (iii) Liquidity shall be at least $40,000,000 and (iv) no Default or Event of Default shall have occurred and be continuing.