Common use of Agent's and Lenders' Discretion Clause in Contracts

Agent's and Lenders' Discretion. (a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, or the like by any Agent or any Lender shall be to such Person’s reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed), based upon such Person’s consideration of any such factors as that Agent or that Lender, taking into account information of which that Person then has actual knowledge, reasonably believes: (i) Will or reasonably could be expected to affect, in more than a de minimis manner, the value of the Collateral, the enforceability of the Collateral Agent’s Collateral Interests therein, or the amount which the Collateral Agent would likely realize therefrom (taking into account delays which may possibly be encountered in the Collateral Agent’s realizing upon the Collateral and likely Costs of Collection). (ii) Indicates that any report or financial information delivered to any Agent or any Lender by or on behalf of any Loan Party is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement. (iii) That a Default has occurred and is continuing. (b) In the exercise of such judgment, each Agent or each Lender reasonably also may take into account any of the following factors: (i) Those included in, or tested by, the definitions of “Eligible Accounts” and “Eligible Inventory”. (ii) The current financial and business climate of the industry in which each Loan Party competes (having regard for that Loan Party’s position in that industry). (iii) General macroeconomic conditions which have a material effect on the Loan Parties’ cost structure. (iv) Material changes in or to the mix of the Borrowers’ Inventory. (v) Seasonality with respect to the Borrowers’ Inventory and patterns of retail sales. (vi) Such other factors as each Agent and each Lender reasonably determine as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowers. (c) The burden of establishing the failure of any Agent or any Lender to have acted in a reasonable manner in such Person’s exercise of such discretion shall be the Loan Parties’ and may be made only by clear and convincing evidence.

Agent's and Lenders' Discretion. (a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, discretion or the like by any the Agent or any Revolving Credit Lender or any Term Loan Lender shall be to such Person’s reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed)faith, based upon such Person’s consideration of any such factors as that the Agent or that LenderRevolving Credit Lender or Term Loan Lender believes, taking into account information of which that Person then has actual knowledge, reasonably believes: (i) Will or reasonably could would be expected to affect, in more than a de minimis manner, affect the value of the Collateral, the enforceability of the Collateral Agent’s Collateral Interests therein, or the amount which the Collateral Agent would likely realize therefrom (taking into account delays which may possibly be encountered in the Collateral Agent’s realizing upon the Collateral and likely Costs of Collection). (ii) Indicates that That any report or financial information delivered to any the Agent or any Revolving Credit Lender or any Term Loan Lender by or on behalf of any Loan Party the Borrower is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement. (iii) An increase in the likelihood that the Borrower will become the subject of a bankruptcy or insolvency proceeding. (iv) That a Default has occurred and the Borrower is continuingIn Default. (b) In the exercise of such judgment, the Agent and each Agent or each Revolving Credit Lender reasonably and Term Loan Lender also may take into account any of the following factors: (i) Those included in, or tested by, the definitions of “Eligible AccountsInventory” and “Eligible InventoryCost”. (ii) The Changes in the current financial and business climate of the industry in which each Loan Party the Borrower competes (having regard for that Loan Partythe Borrower’s position in that industry). (iii) General Changes in general macroeconomic conditions which have a material effect on the Loan Parties’ Borrower’s cost structure. (iv) Material changes in or to the mix of the Borrowers’ Borrower’s Inventory. (v) Seasonality Changes in seasonality with respect to the Borrowers’ Borrower’s Inventory and patterns of retail sales. (vi) Such Changes in such other factors as each the Agent and each Revolving Credit Lender and Term Loan Lender reasonably determine determines as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the BorrowersBorrower. (c) The burden of establishing the failure of any the Agent or any Revolving Credit Lender or any Term Loan Lender to have acted in a reasonable manner in such Person’s exercise of such discretion shall be the Loan Parties’ and may be made only by clear and convincing evidenceBorrower’s.

Agent's and Lenders' Discretion. (a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, discretion or the like by the Agent, any Agent Revolving Credit Lender or any Term Loan Lender shall be to such Person’s reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed)faith, based upon such Person’s consideration of any such factors as that Agent the Agent, any Revolving Credit Lender or that Lenderany Term Loan Lender believes, taking into account information of which that Person then has actual knowledge, reasonably believes: (i) Will or reasonably could would be expected to affect, in more than a de minimis manner, affect the value of the Collateral, the enforceability of the Collateral Agent’s Collateral Interests therein, or the amount which the Collateral Agent would likely realize therefrom (taking into account delays which may possibly be encountered in the Collateral Agent’s realizing upon the Collateral and likely Costs of Collection). (ii) Indicates that That any report or financial information delivered to any the Agent or any Revolving Credit Lender or any Term Loan Lender by or on behalf of any Loan Party the Borrowers is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement. (iii) An increase in the likelihood that the Borrowers will become the subject of a bankruptcy or insolvency proceeding. (iv) That a Default has occurred and is continuingthe Borrowers are In Default. (b) In the exercise of such judgment, each the Agent or each and Revolving Credit Lender reasonably and Term Loan Lender may also may take into account any of the following factors: (i) Those included in, or tested by, the definitions of “Eligible AccountsInventory” and “Eligible InventoryCost”. (ii) The Changes in the current financial and business climate of the industry in which each Loan Party any Borrower competes (having regard for that Loan Partysuch Borrower’s position in that industry). (iii) General Changes in general macroeconomic conditions which have a material effect on the Loan Parties’ any Borrower’s cost structure. (iv) Material changes in or to the mix of the any Borrowers’ Inventory. (v) Seasonality Changes in seasonality with respect to the Borrowers’ any Borrower’s Inventory and patterns of retail sales. (vi) Such Changes in such other factors as each the Agent and each Revolving Credit Lender and Term Loan Lender reasonably determine determines as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowers. (c) The burden of establishing the failure of any the Agent or any Revolving Credit Lender or any Term Loan Lender to have acted in a reasonable manner in such Person’s exercise of such discretion shall be upon the Loan Parties’ and may be made only by clear and convincing evidenceBorrowers.

Agent's and Lenders' Discretion. (a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, or the like by any Agent or any Lender shall be to such Person’s 's reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed), based upon such Person’s 's consideration of any such factors as that Agent or that Lender, taking into account information of which that Person then has actual knowledge, reasonably believes: (i) Will or reasonably could be expected to affect, in more than a de minimis DE MINIMIS manner, the value of the Collateral, the enforceability of the Collateral Agent’s 's Collateral Interests therein, or the amount which the Collateral Agent would likely realize therefrom (taking into account delays which may possibly be encountered in the Collateral Agent’s 's realizing upon the Collateral and likely Costs of Collection). (ii) Indicates that any report or financial information delivered to any Agent or any Lender by or on behalf of any Loan Party is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement. (iii) That a Default has occurred and is continuing. (b) In the exercise of such judgmentjudgement, each Agent or each Lender reasonably also may take into account any of the following factors: (i) Those included in, or tested by, the definitions of “"Eligible Accounts” " and “"Eligible Inventory”". (ii) The current financial and business climate of the industry in which each Loan Party competes (having regard for that Loan Party’s 's position in that industry). (iii) General macroeconomic conditions which have a material effect on the Loan Parties’ ' cost structure. (iv) Material changes in or to the mix of the Borrowers’ ' Inventory. (v) Seasonality with respect to the Borrowers’ ' Inventory and patterns of retail sales. (vi) Such other factors as each Agent and each Lender reasonably determine as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowers. (c) The burden of establishing the failure of any Agent or any Lender to have acted in a reasonable manner in such Person’s 's exercise of such discretion shall be the Loan Parties’ ' and may be made only by clear and convincing evidence.