Common use of Issuance of Capital Securities Clause in Contracts

Issuance of Capital Securities. Xxxx-Xxxxx will not, and will not permit any of its Subsidiaries to, (a) issue any Capital Securities (whether for value or otherwise) to any Person other than (in the case of Subsidiaries), to Xxxx-Xxxxx or another Wholly Owned Subsidiary; except for the issuance of Capital Securities of Xxxx-Xxxxx consisting of common stock: (i) pursuant to and in accordance with the terms of the Plan of Reorganization to various holders of allowed unsecured claims, (ii) as restricted stock units, or pursuant to options or other similar securities, granted under and in accordance with the terms of the Xxxx-Xxxxx Stores, Inc. Equity Incentive Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, and (iii) pursuant to and in accordance with the terms of the Xxxx Xxxxx Stores, Inc. Employee Stock Purchase Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, provided that, in each case, (w) Agent shall have received at least one day’s prior written notice of any proposed change in or amendment to any such plan or of any proposed increase in the amount of Xxxx-Xxxxx common stock that may be issued under any such plan, and upon Agent’s request at any time, Xxxx-Xxxxx shall provide Agent with a summary, in form and substance satisfactory to Agent, of the equity capital structure of Xxxx-Xxxxx at such time (showing among other things accurate ownership percentages of the equityholders of the outstanding Capital Securities of Xxxx-Xxxxx and a statement of authorized and issued Capital Securities), (x) the terms of such issuance shall not include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit hereunder or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Loan Documents or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Securities contemplated by the Plan of Reorganization, (y) Xxxx-Xxxxx shall not be required to make, and shall not make, any Restricted Payments in respect of such Capital Securities, except as otherwise permitted herein, and (z) in no event shall Xxxx-Xxxxx be required to issue, or shall Xxxx-Xxxxx issue or permit the issuance of, any such Capital Securities if a Change in Control or other Event of Default would result therefrom; or (b) become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any Capital Securities of Xxxx-Xxxxx or any Subsidiary or any option, warrant or other right to acquire any such Capital Securities.”

Issuance of Capital Securities. Xxxx-Xxxxx will not, and will not permit Issue any of its Subsidiaries to, (a) issue any Capital Securities (whether for value or otherwise) except that this Section 4.15 shall not apply to any issuance by a Consolidated Subsidiary of any of its Capital Securities so long as the Capital Securities so issued to any Person other than (in the case of Subsidiaries), to Xxxx-Xxxxx Borrower or another Wholly Owned Consolidated Subsidiary shall be no greater than such Person's share of all Capital Securities of such Consolidated Subsidiary issued at such time, if issued to the holders of such Consolidated Subsidiary; except for 's Capital Securities pro rata on the basis of the relative amounts of such Capital Securities held by such holders immediately prior to the issuance of such Capital Securities, provided, except with respect to the Capital Securities of Xxxxa -------- Non-Xxxxx consisting Material Subsidiary, that any such Capital Securities issued to the Borrower or a Consolidated Subsidiary shall constitute Collateral and the Borrower or such Consolidated Subsidiary, as the case may be, shall grant to the Secured Party a fully perfected security interest, not subject to any prior Lien, in all of common stock: the Capital Securities owned by such Person of any such Subsidiary, as security for the Secured Obligations, provided that if such Subsidiary is not a -------- United States Person, such security interest shall be granted in no more than 65% of the outstanding Capital Securities of such Subsidiary; without limiting the generality of the foregoing, such requirement shall include (i) pursuant delivery to and in accordance with the terms Secured Party of the Plan of Reorganization to various holders of allowed unsecured claims, (ii) as restricted executed stock units, or pursuant to options or other similar securities, granted under and in accordance with the terms of the Xxxx-Xxxxx Stores, Inc. Equity Incentive Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, and (iii) pursuant to and in accordance with the terms of the Xxxx Xxxxx Stores, Inc. Employee Stock Purchase Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, provided that, in each case, (w) Agent shall have received at least one day’s prior written notice of any proposed change in or amendment to any such plan or of any proposed increase in the amount of Xxxx-Xxxxx common stock that may be issued under any such plan, and upon Agent’s request at any time, Xxxx-Xxxxx shall provide Agent with a summary, pledge agreements in form and substance satisfactory to Agent, of the equity capital structure of Xxxx-Xxxxx at such time (showing among other things accurate ownership percentages of the equityholders of the outstanding Capital Securities of Xxxx-Xxxxx and a statement of authorized and issued Capital Securities), (x) the terms of such issuance shall not include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit hereunder or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Loan Documents or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Securities contemplated by the Plan of Reorganization, (y) Xxxx-Xxxxx shall not be required to make, and shall not make, any Restricted Payments Secured Party in respect of such Capital Securities, except (ii) the delivery to the Secured Party of the stock certificates (if any) evidencing such Capital Securities, together with any appropriate stock powers duly executed in blank, (iii) the delivery to the Administrative Agent of an opinion of counsel to Borrower and relevant Subsidiaries as otherwise permitted hereinto such matters as the Administrative Agent may reasonably request, (iv) the delivery to the Administrative Agent of charter documents and authorizing resolutions of the Borrower and the relevant Subsidiaries and (zv) the taking of such other action by the Borrower and any Subsidiaries (including, without limitation, the obtaining of any required consents) as the Administrative Agent may reasonably request in no event shall Xxxx-Xxxxx be required connection with the grant to issueSecured Party of an effective and fully perfected security interest, or shall Xxxx-Xxxxx issue or permit the issuance ofnot subject to any prior Lien, any in such Capital Securities and (vi) such certificates, resolutions, legal opinions, copies of filings and notices, and other materials as the Administrative Agent may reasonably request; and provided, further, that if a Change Default shall exist, the -------- ------- Administrative Agent may, in Control or other Event of Default would result therefrom; or (b) become liable in respect of any obligation (contingent or otherwise) to purchaseits sole and absolute discretion, redeem, retire, acquire or make any other payment in respect of any require that the Capital Securities of Xxxx-Xxxxx or any Subsidiary or any option, warrant or other right to acquire any constitute Collateral and the Person acquiring such Capital SecuritiesSecurities comply with the requirements of the immediately preceding proviso.”

Issuance of Capital Securities. Xxxx-Xxxxx will not, and (a) The Parent will not permit issue, sell or otherwise transfer or assign (an “Issuance”) any of its Subsidiaries to, (a) issue any Capital Securities (whether for value or otherwise) to any Person other than (in the case of Subsidiaries), to Xxxx-Xxxxx or another Wholly Owned Subsidiary; except for the issuance except: (i) an Issuance of Capital Securities of Xxxx-Xxxxx consisting of common stock: (i) pursuant to and a public offering or private placement for the purpose of raising capital; provided, however, that the Net Equity Proceeds, if any, resulting from such Issuance shall be applied to the repayment of the Obligations in accordance with the terms of the Plan of Reorganization to various holders of allowed unsecured claims, Section 3.1.1; (ii) as restricted stock unitsan Issuance of Capital Securities to the Borrower or a Subsidiary Guarantor; provided, or pursuant to options or other similar securitieshowever, granted under and that such Issuance shall not be consummated in accordance with the terms contemplation of the Xxxx-Xxxxx Stores, Inc. Equity Incentive Plan Disposition of such Subsidiary Guarantor (in whole or similar plan for in part) or any Disposition of any assets of the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, and Borrower or such Subsidiary Guarantor (in whole or in part); (iii) an Issuance of Capital Securities for purposes of permitted Investments pursuant to and in accordance with the terms Section 7.2.5 or Permitted Acquisitions pursuant to clause (b) of the Xxxx Xxxxx StoresSection 7.2.10; provided, Inc. Employee Stock Purchase Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiarieshowever, provided that, in each case, that (w) Agent shall have received at least one day’s prior written notice of any proposed change in or amendment to any such plan or of any proposed increase in the amount of Xxxx-Xxxxx common stock that may be issued under any such plan, and upon Agent’s request at any time, Xxxx-Xxxxx shall provide Agent with a summary, in form and substance satisfactory to Agent, of the equity capital structure of Xxxx-Xxxxx at such time (showing among other things accurate ownership percentages of the equityholders of the outstanding Capital Securities of Xxxx-Xxxxx and a statement of authorized and issued Capital Securitiesx), (x) for purposes of determining compliance with this Agreement, the terms value of such issuance shall not include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit hereunder or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Loan Documents or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Securities contemplated by the Plan of Reorganization, (y) Xxxx-Xxxxx shall not be required to make, and shall not make, any Restricted Payments in respect of such Capital Securities, except as otherwise permitted herein, and (z) in no event shall Xxxx-Xxxxx be required to issue, or shall Xxxx-Xxxxx issue or permit the issuance of, any such Capital Securities subject to such Issuance shall be based upon the average closing price for such securities as of the close of the last three trading days therefor immediately prior to the date of such Issuance (or, if such Capital Securities are not publicly traded or quoted, the value of such securities shall be determined by the Board of Directors of the Parent, acting in good faith), and (y) with respect to any Issuance of Capital Securities pursuant to this clause (iii) (other than any such Issuance by the Parent as non-cash consideration for a Change Permitted Acquisition (A) where the Parent (or one of its Subsidiaries) is acquiring shares of a corporation which are listed on a recognized securities exchange or are traded on the NASDAQ National Market System, or (B) which, when taken together with all other such Issuances under this clause (B) in Control respect of Permitted Acquisitions since the Closing Date, does not exceed $150,000,000) such Capital Securities shall not be saleable or other Event transferable by the recipients thereof under or pursuant to any registration statement of Default would result therefromthe Parent filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for a period of at least six months following the date of such Issuance; or (iv) an Issuance of Capital Securities to employees of the Parent or any of its Subsidiaries pursuant to any Pension Plan, any tax qualified retirement plan, any employee’s or director’s compensation plan or any similar benefits or compensation plan, in each case approved by the Board of Directors of the Parent. (b) become liable The Parent will not permit any of its Subsidiaries to consummate or effect any Issuance of such Subsidiary’s Capital Securities (whether for value or otherwise), except: (i) an Issuance of Capital Securities to the Parent, the Borrower or a Subsidiary Guarantor; provided, however, that such Issuance shall not be consummated in respect contemplation of the Disposition of such Subsidiary Guarantor (in whole or in part) or any Disposition of any obligation assets of the Parent, the Borrower or such Subsidiary Guarantor (contingent in whole or otherwisein part); or (ii) to purchase, redeem, retire, acquire or make any other payment in respect Issuance; provided, however, that all Net Disposition Proceeds resulting from such Issuance shall be applied to the repayment of the Obligations pursuant to Section 3.1.1. (c) Any term or provision hereof to the contrary notwithstanding, no such Issuance, otherwise permitted hereunder shall be permitted if, either immediately prior to or after giving effect thereto, any Capital Securities of Xxxx-Xxxxx Default has occurred (or any Subsidiary or any option, warrant or other right to acquire any such Capital Securitieswould occur) and is continuing.”

Issuance of Capital Securities. Xxxx-Xxxxx will not, and (a) The Parent will not permit issue, sell or otherwise transfer or assign (an “Issuance”) any of its Subsidiaries to, (a) issue any Capital Securities (whether for value or otherwise), except: (i) an Issuance of Capital Securities pursuant to a public offering or private placement for the purpose of raising capital; provided, however, that 50% of any Person other than Net Equity Proceeds, if any, resulting from such Issuance shall be applied to the repayment of the Obligations pursuant to Section 3.1.1; or (ii) an Issuance of Capital Securities for purposes of consummating a Permitted Acquisition permitted pursuant to clause (g) of Section 7.2.5 or clause (b) of Section 7.2.10. (b) The Parent will not permit any of its Restricted Subsidiaries to consummate or effect any Issuance of such Subsidiary’s Capital Securities (whether for value or otherwise), except an Issuance of Capital Securities by the Borrower or any Subsidiary Guarantor to the Parent, the Borrower or a Subsidiary Guarantor; provided, however, that such Issuance shall not be consummated in contemplation of the Disposition of such Subsidiary Guarantor (in whole or in part) or any Disposition of any assets of the case Parent, the Borrower or such Subsidiary Guarantor (in whole or in part). (c) Any term or provision hereof to the contrary notwithstanding, (i) no such Issuance, otherwise permitted hereunder shall be permitted if, either immediately prior to or after giving effect thereto, any Default has occurred (or would occur) and is continuing and (ii) the Parent and any Subsidiary may sell or Dispose of Subsidiaries), to Xxxx-Xxxxx or another Wholly Owned Subsidiary; except for the issuance shares of Capital Securities of Xxxx-Xxxxx consisting any of common stock: (i) pursuant itself or its Subsidiaries in order to and in accordance with the terms qualify members of the Plan board of Reorganization to various holders of allowed unsecured claims, (ii) as restricted stock units, directors or pursuant to options or other similar securities, granted under and in accordance with the terms equivalent governing body of the Xxxx-Xxxxx Stores, Inc. Equity Incentive Plan Parent or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, and (iii) pursuant to and in accordance with the terms of the Xxxx Xxxxx Stores, Inc. Employee Stock Purchase Plan such Subsidiary or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, provided that, in each case, (w) Agent shall have received at least one day’s prior written notice of any proposed change in or amendment to any such plan or of any proposed increase in the amount of Xxxx-Xxxxx common stock that may be issued under any such plan, and upon Agent’s request at any time, Xxxx-Xxxxx shall provide Agent with a summary, in form and substance satisfactory to Agent, of the equity capital structure of Xxxx-Xxxxx at such time (showing among other things accurate ownership percentages of the equityholders of the outstanding Capital Securities of Xxxx-Xxxxx and a statement of authorized and issued Capital Securities), (x) the terms of such issuance shall not include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit hereunder or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Loan Documents or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Securities contemplated by the Plan of Reorganization, (y) Xxxx-Xxxxx shall not be nominal shares required to makebe held other than by such Subsidiary, and shall not make, any Restricted Payments in respect of such Capital Securities, except as otherwise permitted herein, and (z) in no event shall Xxxx-Xxxxx be required to issue, or shall Xxxx-Xxxxx issue or permit the issuance of, any such Capital Securities if a Change in Control or other Event of Default would result therefrom; or (b) become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any Capital Securities of Xxxx-Xxxxx or any Subsidiary or any option, warrant or other right to acquire any such Capital Securitiesby applicable law.”

Issuance of Capital Securities. Xxxx-Xxxxx will not, and will not permit any of its Subsidiaries to, (a) issue or sell any Capital Securities (whether for value or otherwise) to any Person after the date hereof (other than (in the case of Subsidiariessuch Capital Securities issued or sold pursuant to a Qualified Debt Offering as permitted under Section 7.2.2(l)), to Xxxx-Xxxxx or another Wholly Owned Subsidiary; except for unless each of the issuance of Capital Securities of Xxxx-Xxxxx consisting of common stockfollowing conditions are satisfied: (i) pursuant to and in accordance with the terms of the Plan of Reorganization to various holders of allowed unsecured claims, (ii) as restricted stock units, or pursuant to options or other similar securities, granted under and in accordance with the terms of the Xxxx-Xxxxx Stores, Inc. Equity Incentive Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, and (iii) pursuant to and in accordance with the terms of the Xxxx Xxxxx Stores, Inc. Employee Stock Purchase Plan or similar plan for the benefit of employees of Xxxx-Xxxxx and its Subsidiaries, provided that, in each case, (wa) Agent shall have received at least one day’s (i) not less than ten (10) Business Days’ (or such shorter period as may be acceptable to Agent) prior written notice of any proposed change in or amendment to any such plan or of any proposed increase in the amount of issuance and sale by Xxxx-Xxxxx common stock or any of its Subsidiaries, which notice shall specify the maximum amount and the maximum net cash proceeds that are anticipated to be realized from the issuance and sale of such Capital Securities, and the anticipated principal terms of such sale, and (ii) not less than three (3) Business Days’ (or such shorter period as may be issued under any acceptable to Agent) prior written notice of such plan, issuance and upon Agent’s request at any time, sale by Xxxx-Xxxxx or any of its Subsidiaries, which notice shall provide Agent with a summaryspecify the anticipated amount and net cash proceeds from such issuance and sale, in form and substance satisfactory to Agent, the anticipated final terms and conditions of the equity capital structure of Xxxx-Xxxxx at such time (showing among other things accurate ownership percentages of the equityholders of the outstanding Capital Securities of Xxxx-Xxxxx and a statement of authorized and issued Capital Securities)sale, (xb) the terms of such preferred stock issued by Xxxx-Xxxxx or any of its Subsidiaries and the terms and conditions of the issuance and sale thereof shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit hereunder or the right of any Borrower or and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Loan Documents or affect the arrangements of Borrowers with Agent and Lenders impose affirmative or negative covenants or other obligations or restrictions that, taken as a whole, are more restrictive or burdensome to any Borrower or Guarantor than the terms contained in this Agreement or any of any the other Loan Documents, taken as a whole and (c) except to the extent the cash proceeds of such issuance or sale of Capital Securities contemplated by are temporarily held in a deposit or securities account for not longer than five (5) Business Days or except as Agent may otherwise agree in writing, the Plan cash proceeds of Reorganizationsuch issuance and sale (net of all transaction costs and expenses in connection with such issuance and sale) shall, to the extent there are any Loans or other Obligations then outstanding under this Agreement, be paid to the Agent for application to such Loans and other Obligations (y) Xxxx-Xxxxx shall not be required to make, and shall not make, other than any Restricted Payments such Obligations in respect of such Capital Securities, except as otherwise permitted herein, Letter of Credit Outstandings that are not then due and (zpayable) in no event shall Xxxx-Xxxxx accordance with the terms hereof, with the balance, if any, to be required to issue, or shall Xxxx-Xxxxx issue or permit used by the issuance of, any such Capital Securities if a Change in Control or Obligors for other Event of Default would result therefrom; or (b) become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any Capital Securities of Xxxx-Xxxxx or any Subsidiary or any option, warrant or other right to acquire any such Capital Securitiesgeneral corporate purposes).”