Common use of Distributions; Upstream Payments Clause in Contracts

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availability. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. Declare (i) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, the Term Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15 or (ii) declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement.Payments; (b) Each Subsidiary of an Obligor may make Distributions to any BorrowerBorrowers by Subsidiaries; (c) the Distributions by Subsidiaries that are not Obligors and each Subsidiary may declare and make dividend payments (or distributions payable solely in the common stock or required to become Obligors) to other common Equity Interests of such Person, so long as it does Subsidiaries that are not result in a Change of ControlObligors; (d) a Distribution Distributions by Spansion in an amount sufficient to repurchase Capital Stocks of Parent or Spansion from current or former officers, directors or employees of Parent or Spansion, as applicable, pursuant to the extent permitted under Section 10.2.16(e); terms of agreements (eincluding employment agreements) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants plans (or any spousesamendments thereto) approved by the board of directors of Parent or Spansion, ex-spousesas applicable, under which such individuals purchase or sell, or estates of any of are granted the foregoing) of any Obligor option to purchase or any of its Subsidiariessell, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Personscommon Capital Stocks; provided, thathowever, in all such cases that (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased repurchases shall not exceed $2,500,000 5,000,000 in any Fiscal Year calendar year and (ii) immediately before and after making at the time of such Distributionrepurchase, no other Default or Event of Default shall have occurred and be continuing (or result therefrom, ); (iiie) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 Distributions by Parent in the form of Availability.the conversion of its convertible Debt into Capital Stocks of Parent or the conversion of the Capital Stocks of Parent into another class of its Capital Stocks; (f) Any payment Distributions by Parent in the form of cash payments in lieu of fractional shares in connection with any Distribution permitted hereunder (“Fractional Share Payments”) and Distributions by Spansion to Parent to permit Parent to make such Fractional Share Payments in an aggregate amount not to exceed $1,000,000; (g) Distributions by Parent or Spansion consisting of the repurchase of Capital Stock (other than Disqualified Capital Stock) to the extent such repurchase is deemed to occur upon a cashless exercise of stock options, restricted stock units or warrants, so long as no Event of Default shall exist or would result therefrom; and so long as no Dominion/Covenant Trigger Event has occurred or would result therefrom; (h) Distributions by Spansion to Parent or Spansion Technology LLC (i) consisting of any payments of Tax Distributions permitted hereunder or (ii) to pay the actual corporate overhead expenses of Parent or Spansion Technology LLC, in an amount not to exceed $10,000,000 in the aggregate during the term of this Agreement; (i) Distributions by Parent with respect to the repurchase or redemption, and Distributions by Spansion to Parent to permit Parent to repurchase or redeem, for nominal consideration, preferred stock purchase rights issued in connection with any shareholder rights plan of Parent, so long as no Event of Default shall exist or would result therefrom; and so long as no Dominion/Covenant Trigger Event has occurred or would result therefrom; Reorganization; and (j) any Distributions required pursuant to Section 5.13 the terms of the Second Lien Loan AgreementPlan of (k) Distributions in the form of common stock of Parent distributed to employees in connection with Spansion’s Incentive Stock Plan.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit Intermediate Holdco or the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of Intermediate Holdco and the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit Intermediate Holdco and the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, board costs, insurance costs and other administrative costs and expenses customary for such a companycompany (including directors and officers insurance payments and to the extent applicable, customary administrative costs and expenses applicable to any public company which is a direct or indirect parent of Intermediate Holdco), in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e);; and (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate the direct or indirect parent of Intermediate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased Distributions shall not exceed $2,500,000 75,000,000 in any Fiscal Year Year, and (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availabilitythe Payment Conditions are satisfied. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (ai) Upstream Payments Payments; (ii) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (iii) the Borrower may make Distributions to redeem in whole or in part any of its Equity Interest for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that the direct only consideration paid for any such redemption is Equity Interests of the Borrower or indirect parent the proceeds of Intermediate Holdco any substantially concurrent equity contribution or issuance of Equity Interest; (iv) the Borrower may (x) repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities or exercises of warrants or options or (y) “net exercise” or “net share settle” warrants or options; (v) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to (or make payments on behalf of) directors, officers, employees or other providers of services to the extent necessary Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations relating to the vesting, settlement or exercise of such Equity Interests or rights; (vi) the Borrower may repurchase Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries at the original purchase price of such Equity Interests or rights in respect thereof pursuant to a right of repurchase set forth in equity compensation plans in connection with a cessation of service; (vii) the receipt or acceptance by the Borrower or any Subsidiary of the return of Equity Interests issued by the Borrower or any Subsidiary to the seller of a Person, business or division as consideration for the purchase of such Person, business or division, which return is in settlement of indemnification claims owed by such seller in connection with such acquisition; (viii) the Borrower may repurchase Equity Interests pursuant to the terms of a call spread or similar arrangement entered into in connection with the issuance of convertible notes; and (ix) other Distributions made when the Payment Conditions are met; or (b) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for (i) permit restrictions under the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its SubsidiariesLoan Documents, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxesrestrictions under Applicable Law, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under restrictions in effect on the Project Vine Purchase Agreement. Closing Date as shown on Schedule 9.1.15, (biv) Each customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary or assets of an Obligor may make Distributions the Borrower or any Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary or assets to be sold and such sale is not prohibited hereunder, (v) any Borrower; (c) agreement or restriction or condition in effect at the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Persontime any Person becomes a Subsidiary, so long as it does such agreement was not result entered into solely in contemplation of such Person becoming a Change of Control; Subsidiary (dbut shall apply to any extension or renewal of, or any amendment or modification materially expanding the scope of, any such restrictions or conditions taken as a whole), (vi) a Distribution restrictions or conditions imposed by any agreement relating to secured Debt permitted by this Agreement if such restrictions or conditions apply only to the extent permitted under Section 10.2.16(e); property or assets securing such Debt, (evii) customary provisions in leases, licenses, sub-leases and sub-licenses and other contracts restricting the Borrowers may make Distributions to Intermediate Holdcoassignment thereof or restricting the grant of Liens in such lease, license, sub-lease, sub-license or other contract, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoingviii) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights restrictions on cash or other equity incentives deposits (including escrowed funds) imposed under contracts entered into in the Ordinary Course of Business or equity based incentives or in connection with restrictions imposed by the death or disability terms of such Persons; provided, that, in all such cases (i) a Permitted Lien on the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect property subject to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of AvailabilityPermitted Lien. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to Parent and other Persons holding Equity Interests in the direct or indirect parent of Intermediate Holdco Company, as applicable, to the extent necessary to (i) permit the direct or indirect parent Company to make any payments required to be made under Section 4.3 of Intermediate Holdco to discharge, the Company LLC Agreement with respect to the extent attributable to Tax Receivable Agreement (other than the direct or indirect ownership of Borrowers Early Termination Payment under (and their Subsidiaries, as defined in) the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, Tax Receivable Agreement) (ii) permit the direct or indirect parent Company to make any payments required to be made under clauses (A), (B), (C) and (D) of Intermediate Holdco Section 4.3(ii) of the Company LLC Agreement, in each case so long as such Distribution is made in connection with the investments, business activities, and entity structure of the Company and its Subsidiaries (as reasonably determined by the Company acting in good faith), (iii) permit the Company to make any payments required to be made under Section 4.4 of the Company LLC Agreement with respect to Tax Distributions (as defined in Section 4.4 of the Company LLC Agreement), and (iv) permit Parent to pay franchise taxes, audit costs, costs associated with compliance with the requirements of the Sxxxxxxx-Xxxxx Act of 2002, other Public Company Costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement.; (b) Each each Subsidiary of an Obligor may make Distributions to any BorrowerObligor; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e);10.2.16; and. (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate HoldcoParent, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors advisors, service providers or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of Parent, any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 5% of the Class A Equity Interests of Parent in any Fiscal Year the aggregate during the term of this Agreement, and (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availability. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. (a) Declare or make any Distributions, exceptother than: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such PersonDistributions, so long as it does not (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) after giving Pro Forma Effect thereto, the Borrower is in a Change of ControlPro Forma Compliance with the financial covenants set forth in Section 7.17; (dii) a Distribution to the extent permitted under Section 10.2.16(e)Upstream Payments; (eiii) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds acquisitions of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment Borrower in connection with the exercise of stock options, restricted stock units or stock appreciation rights by way of cashless exercise or other equity incentives or equity based incentives or Distributions in connection with the death satisfaction of withholding tax obligations; (iv) purchases or disability payments in lieu of such Personsfractional shares of the Equity Interests of the Borrower arising out of stock dividends, splits or combinations, business combinations or conversion or exercise of convertible securities (including Convertible Debt Securities), options or warrants; (v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, purchases, repurchases, redemptions, defeasances, acquisitions or retirements for value of (A) Equity Interests of the Borrower or any of its Subsidiaries from any officer, director, employee or consultant of the Borrower or its Subsidiaries in an aggregate amount not to exceed $10,000,000 during any year and (B) any non-cash rights distributed in connection with any stockholder rights plan; (vi) in connection with any acquisition permitted pursuant to Section 7.04, (A) receive or accept the return to the Borrower or any of its Subsidiaries of Equity Interests of the Borrower or any of its Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or as a result of purchase price adjustments or (B) make payments or distributions to dissenting stockholders pursuant to applicable law; (vii) payments or distributions to dissenting stockholders pursuant to applicable law; (viii) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements; providedand (ix) the Borrower may purchase, thatredeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of its Equity Interests. (b) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, in all such cases except for restrictions (i) under the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year Loan Documents, (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrompermitted under Section 7.11, (iii) immediately before and after giving under Applicable Law or (iv) in effect on the Closing Date as shown on Schedule 5.13 to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availabilitythe Disclosure Letter. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to except (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, Upstream Payments; (ii) permit the direct or indirect parent US Concrete may declare and pay Distributions with respect to its Equity Interests payable solely in additional shares of Intermediate Holdco to pay franchise taxes, audit costs, and its Equity Interests (other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purposethan Disqualified Equity Interests); and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor US Concrete may make Distributions Distributions, not exceeding $10,000,000 during any Fiscal Year, pursuant to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common accordance with stock option plans or other common benefit plans for management or employees of US Concrete and its Subsidiaries or rights plans for holders of its Equity Interests; (iv) a Borrower may make payments in cash or issue notes to former employees, officers or directors of such Borrower in connection with the redemption or repurchase of Equity Interests of in such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests Borrower from officers, directors, such former employees, advisors officers or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, directors upon termination of employment with such Borrower or their death or disability in an aggregate amount not to exceed $1,500,000 and provided such notes are subordinate to the Obligations in form and substance reasonably acceptable to the Agent; (v) Subsidiaries may make Distributions ratably with respect to their Equity Interests; (vi) Distributions in respect of fractional shares; (vii) other Distributions (including the repurchase or retirement of warrants existing as of the Initial Closing Date with respect to US Concrete’s Equity Interests) so long as all of the Distribution Conditions are satisfied with respect thereto; and (viii) Distributions in connection with the exercise US Concrete’s purchase or redemption of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such its Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availability. (f) Any payment permitted or required pursuant to Section 5.13 long as all of the Second Lien Stock Redemption Conditions are satisfied with respect thereto, or (b) create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan AgreementDocuments, under Applicable Law, in effect on the Closing Date as shown on Schedule 9.1.15 or under an agreement permitted under Section 10.2.13. 10.2.4.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to made at any time if after giving effect thereto, on a pro forma basis, (i) permit the direct or indirect parent of Intermediate Holdco Fixed Charge Coverage Ratio at such time shall be at least 1.25 to discharge, to the extent attributable to the direct or indirect ownership of Borrowers 1.0 and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco Average Excess Availability for the 30 day period prior to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied and the projected Average Excess Availability as determined in good faith by the Company (as certified by a Senior Officer of the Company) for the 30 day period following any such purpose; Distribution shall be at least 30% of the lesser of (A) the Borrowing Base and (iiiB) make tax-related payments required under the Project Vine Purchase Agreement.aggregate amount of Commitments; provided that no Default or Event of Default exists before or after giving effect to such Distributions; (b) Each Subsidiary of an Obligor may make Distributions to any BorrowerUpstream Payments; (c) each Restricted Subsidiary of the Obligors Company may make Distributions to the Company and to another Restricted Subsidiary of the Company with respect to Equity Interests issued by it (and, in the case of any such Distribution by a non wholly-owned Restricted Subsidiary of the Company, to the Company (or any Restricted Subsidiary) and to each other owner of capital stock or other Equity Interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); provided that no Subsidiary Guarantor may make any Distributions to any Restricted Subsidiary of the Company that is not a Subsidiary Guarantor; (d) the Company may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) any Foreign Subsidiary of the Borrowers Company may issue Equity Interests to the extent not prohibited by Section 10.2.18; provided that in the case of any such issuance by a non wholly-owned Subsidiary of the Company, either (i) such issuance constitutes a Permitted Asset Disposition or (ii) such issuance to the Company (or any Restricted Subsidiary) is made at least on a pro rata basis based on their relative ownership interests with each other owner of capital stock or other Equity Interests of such Subsidiary; (f) in the event that, and for each taxable year in which, Holdings or any indirect parent of the Company is treated as an association taxable as a corporation for Federal, state or local income tax purposes and the Company and its Restricted Subsidiaries are included in a consolidated or combined tax group with Holdings or such indirect parent or the Company or its Subsidiaries are treated as pass-through entities for income tax purposes, the Company may make Distributions to Intermediate HoldcoHoldings or such indirect parent in an amount equal to the share of the consolidated, combined or other income tax liability allocable to the Company and Intermediate Holdco its Restricted Subsidiaries (after giving effect to any offsetting deductions) in accordance with applicable Treasury Regulations or, in the case of pass-through entities, computed on a stand-alone or other reasonable basis; provided that any refunds received by Holdings or such indirect parent attributable to the Company and its Restricted Subsidiaries shall promptly be paid by Holdings or indirect parent to the company; (g) the Company or any of its Restricted Subsidiaries may purchase, redeem or otherwise acquire or retire for value and Equity Interest of the Company or any of its Restricted Subsidiaries held by any current or former director, officer, consultant or employee of the Company or any Restricted Subsidiary, or their estates or the beneficiaries of such estates, in an amount not to exceed $3,000,000 in any Fiscal Year and in an aggregate amount not to exceed $3,000,000 for Distributions in connection with the termination of certain employees; and (h) the Company or any of its Restricted Subsidiaries may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases Holdings (i) to satisfy its payment obligations under the Vestar Management Agreement and the SCC Holding Management Agreement, in an aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not to exceed $2,500,000 1,600,000 plus expenses in any Fiscal Year or (ii) immediately before to pay Holdings’s actual out-of-pocket administrative and after making such Distribution, operating fees and expenses so long as Holdings has no Event operations and no Investments other than its ownership of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availability. (f) Any payment permitted or required pursuant to Section 5.13 Equity Interests of the Second Lien Loan AgreementCompany and cash or Cash Equivalents in an aggregate amount not to exceed $1,000,000 in any calendar year.

Distributions; Upstream Payments. Declare (i) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, the Term Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15 or (ii) declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement.Payments; (b) Each Subsidiary of an Obligor may make Distributions to any BorrowerBorrowers by Subsidiaries; (c) the Distributions by Subsidiaries that are not Obligors and each Subsidiary may declare and make dividend payments (or distributions payable solely in the common stock or required to become Obligors) to other common Equity Interests of such Person, so long as it does Subsidiaries that are not result in a Change of ControlObligors; (d) a Distribution Distributions by Spansion in an amount sufficient to repurchase Capital Stocks of Parent or Spansion from current or former officers, directors or employees of Parent or Spansion, as applicable, pursuant to the extent permitted under Section 10.2.16(e); terms of agreements (eincluding employment agreements) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants plans (or any spousesamendments thereto) approved by the board of directors of Parent or Spansion, ex-spousesas applicable, under which such individuals purchase or sell, or estates of any of are granted the foregoing) of any Obligor option to purchase or any of its Subsidiariessell, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Personscommon Capital Stocks; provided, thathowever, in all such cases that (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased repurchases shall not exceed $2,500,000 5,000,000 in any Fiscal Year calendar year and (ii) immediately before and after making at the time of such Distributionrepurchase, no other Default or Event of Default shall have occurred and be continuing (or result therefrom, ); (iiie) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 Distributions by Parent in the form of Availability.the conversion of its convertible Debt into Capital Stocks of Parent or the conversion of the Capital Stocks of Parent into another class of its Capital Stocks; (f) Any payment Distributions by Parent in the form of cash payments in lieu of fractional shares in connection with any Distribution permitted hereunder (“Fractional Share Payments”) and Distributions by Spansion to Parent to permit Parent to make such Fractional Share Payments in an aggregate amount not to exceed $1,000,000; (g) Distributions by Parent or Spansion consisting of the repurchase of Capital Stock (other than Disqualified Capital Stock) to the extent such repurchase is deemed to occur upon a cashless exercise of stock options, restricted stock units or warrants, so long as no Event of Default shall exist or would result therefrom; and so long as no Dominion/Covenant Trigger Event has occurred or would result therefrom; (h) Distributions by Spansion to Parent or Spansion Technology LLC (i) consisting of any payments of Tax Distributions permitted hereunder or (ii) to pay the actual corporate overhead expenses of Parent or Spansion Technology LLC, in an amount not to exceed $10,000,000 in the aggregate during the term of this Agreement; (i) Distributions by Parent with respect to the repurchase or redemption, and Distributions by Spansion to Parent to permit Parent to repurchase or redeem, for nominal consideration, preferred stock purchase rights issued in connection with any shareholder rights plan of Parent, so long as no Event of Default shall exist or would result therefrom; and so long as no Dominion/Covenant Trigger Event has occurred or would result therefrom; (j) any Distributions required pursuant to Section 5.13 the terms of the Second Lien Loan AgreementPlan of Reorganization; and (k) Distributions in the form of common stock of Parent distributed to employees in connection with Spansion’s Incentive Stock Plan.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit Intermediate Holdco or the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of Intermediate Holdco and the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit Intermediate Holdco and the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, board costs, insurance costs and other administrative costs and expenses customary for such a companycompany (including directors and officers insurance payments and to the extent applicable, customary administrative costs and expenses applicable to any public company which is a direct or indirect parent of Intermediate Holdco), in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate the direct or indirect parent of Intermediate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 10,000,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have Availability in an amount equal to no less than $10,000,000 seventeen and one-half percent (17.5%) of Availabilitythe Revolver Commitments. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement. (g) 2021 Distribution, so long as immediately before and after giving effect to any such 2021 Distribution on a pro forma basis, Borrowers shall have Availability in an amount equal to no less than seventeen and one-half percent (17.5%) of the Revolver Commitments.

Distributions; Upstream Payments. (a) Declare or make any Distributions, exceptother than: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such PersonDistributions, so long as it does not (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) after giving Pro Forma Effect thereto, the Borrower is in a Change of ControlPro Forma Compliance with the financial covenants set forth in Section 7.17; (dii) a Distribution to the extent permitted under Section 10.2.16(e)Upstream Payments; (eiii) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds acquisitions of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment Borrower in connection with the exercise of stock options, restricted stock units or stock appreciation rights by way of cashless exercise or other equity incentives or equity based incentives or Distributions in connection with the death satisfaction of withholding tax obligations; (iv) purchases or disability payments in lieu of such Personsfractional shares of the Equity Interests of the Borrower arising out of stock dividends, splits or combinations, business combinations or conversion or exercise of convertible securities (including Convertible Debt Securities), options or warrants; (v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, purchases, repurchases, redemptions, defeasances, acquisitions or retirements for value of (A) Equity Interests of the Borrower or any of its Subsidiaries from any officer, director, employee or consultant of the Borrower or its Subsidiaries in an aggregate amount not to exceed $10,000,000 during any year and (B) any non-cash rights distributed in connection with any stockholder rights plan; (vi) in connection with any acquisition permitted pursuant to Section 7.04, (A) receive or accept the return to the Borrower or any of its Subsidiaries of Equity Interests of the Borrower or any of its Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or as a result of purchase price adjustments or (B) make payments or distributions to dissenting stockholders pursuant to Applicable Law; (vii) payments or distributions to dissenting stockholders pursuant to Applicable Law; (viii) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements; providedand (ix) the Borrower may purchase, thatredeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of its Equity Interests. (b) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, in all such cases except for restrictions (i) under the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year Loan Documents, (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrompermitted under Section 7.11, (iii) immediately before and after giving under Applicable Law or (iv) in effect on the Closing Date as shown on Schedule 5.13 to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availabilitythe Disclosure Letter. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to except (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, Upstream Payments; (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing is continuing, Distributions by the Company or any Subsidiary to Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, (iii) so long as no Event of Default shall have occurred and is continuing, Distributions by the Company, any Subsidiary or Holdings, as applicable, to the holders of the Equity Interests in Holdings pursuant to Section 8.5(d) of the Limited Liability Company Agreement of Black Elk Refining, LLC, as in effect on the Closing Date, (iv) so long as no Default or Event of Default shall have occurred and is continuing, payments to Holdings to permit Holdings, and the subsequent use of such payments by Holdings, to repurchase or redeem Equity Interests of Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Obligor, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any Fiscal Year, $1,000,000, (v) Holdings and each of its Subsidiaries may pay Distributions payable solely in the Equity Interests of Holdings; (vi) Holdings or any of its Subsidiaries may (A) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof and (B) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion; and (vii) other Distributions from the Company to Holdings (and in turn, if desired by Holdings, from Holdings to the holders of the Equity Interest in Holdings), by delivering five (5) Business Days prior written notice to Lender of the Company’s intent to make such Distribution so long (a) as both before and after giving effect to such Distribution, no Default or Event of Default shall have occurred or shall result therefrom, (iiib) Borrower Agent shall have delivered to Lender a Borrowing Base Certificate, together with such supporting documentation as Lender may request (in each case, in form and substance satisfactory to Lender in its discretion), demonstrating that on the date of such Distribution, Excess Availability is greater than $15,000,000, and after giving effect to such Distribution, the average monthly Excess Availability for the twelve month period immediately following such Distribution will be greater than $15,000,000, (c) Borrower Agent shall have delivered to Lender a Compliance Certificate, in form and substance satisfactory to Lender in its discretion, demonstrating that immediately before and after giving effect to such Distribution on a pro forma basisDistribution, Borrowers Obligors shall have no less than $10,000,000 a Fixed Charge Coverage Ratio of Availability. at least 1.25 to 1.00, and certifying compliance with the covenants set forth in this Agreement and (fd) Any payment permitted or required Lender shall have received the audited financial statements and related deliverables pursuant to Section 5.13 of 10.1.2(a) for the Second Lien Loan Agreement2014 Fiscal Year.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit Intermediate Holdco or the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of Intermediate Holdco and the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit Intermediate Holdco and the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, board costs, insurance costs and other administrative costs and expenses customary for such a companycompany (including directors and officers insurance payments and to the extent applicable, customary administrative costs and expenses applicable to any public company which is a direct or indirect parent of Intermediate Holdco), in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement. (b) Each Subsidiary of an Obligor may make Distributions to any Borrower; (c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control; (d) a Distribution to the extent permitted under Section 10.2.16(e); (e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Ultimatethe direct or indirect parent of Intermediate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 2,500,00010,000,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have Availability in an amount equal to no less than $10,000,000 of AvailabilityAvailabilityseventeen and one-half percent (17.5%) of the Revolver Commitments. (f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement. (g) 2021 Distribution, so long as immediately before and after giving effect to any such 2021 Distribution on a pro forma basis, Borrowers shall have Availability in an amount equal to no less than seventeen and one-half percent (17.5%) of the Revolver Commitments.