Common use of AGENT'S AND REVOLVING CREDIT LENDERS' DISCRETION Clause in Contracts

AGENT'S AND REVOLVING CREDIT LENDERS' DISCRETION. (a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, or the like by any Agent or any Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 REVOLVING CREDIT 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 shall be to such Person’s 's reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed)faith, based upon such Person’s 's consideration of any such factors as that the Agent or that Revolving Credit LenderLender 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 '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 That any report or financial information delivered to any the Agent or any Revolving Credit 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 continuingInDefault. (b) In the exercise of such judgmentjudgement, each the Agent or and each Revolving Credit 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”" and "Cost". (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 Party’s the 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 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 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 evidenceBorrower's.

AGENT'S AND REVOLVING CREDIT 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 shall be to such Person’s reasonable exercise of its reasonable judgment, in good faith (which shall be rebuttably presumed), based upon such Person’s consideration of any such factors as that the Agent or that Revolving Credit 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, adversely 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 any report or financial information delivered to any the Agent or any Revolving Credit 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 any material respect in accordance with the requirements of this Agreement. (iii) That Suggests an increase in the likelihood that the Borrower will become the subject of a Default has occurred and bankruptcy or insolvency proceeding. (iv) Suggests that the Borrower is continuingInDefault. (b) In the exercise of such judgment, each the Agent or and each Revolving Credit Lender reasonably 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 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 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 with respect to the Borrowers’ Borrower’s Inventory and patterns of retail sales. (vi) Such other factors as each the Agent and each Revolving Credit 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 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 REVOLVING CREDIT 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 shall be to such Person’s reasonable 's 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 Revolving Credit Lender, taking into account information of which that Person then has actual knowledge. (b) In the exercise of such discretion, reasonably believes:the following may be taken into account. (i) Will or reasonably could be expected The reasonable anticipation: of an adverse change to affect, in more than a 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 The content, completeness, and accuracy of any report or financial information delivered to any the Agent or any Revolving Credit Lender by or on behalf of any Loan Party is incomplete, inaccurate, Borrower and the manner by such report or misleading in any material manner or financial information was not prepared in accordance with the requirements of this Agreementprepared. (iii) That The existence of circumstances which suggest an increase in the likelihood that any Borrower may become the subject of a Default has occurred and is continuingbankruptcy or insolvency proceeding. (biv) The existence of circumstances suggest that any Borrower is In Default. (c) In the exercise of such judgmentdiscretion, each the Agent or and each Revolving Credit 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”" and "Cost". (ii) The current financial and business climate of the industry in which each Loan Party Borrower competes (having regard for that Loan Party’s Borrower's position in that industry). (iii) General macroeconomic conditions which have a material effect on the Loan Parties’ Borrowers' 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 the Agent and each Revolving Credit Lender reasonably determine as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowers. (cd) The burden of establishing the failure of any the Agent or any Revolving Credit Lender to have acted in a reasonable manner in such Person’s 's exercise of such discretion shall be the Loan Parties’ Borrowers' and may be made only by clear and convincing evidence.

AGENT'S AND REVOLVING CREDIT 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 shall be to such Person’s reasonable 's 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 the Agent or that Revolving Credit 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, affect 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 the Agent or any Revolving Credit Lender by or on behalf of any Loan Party Borrower is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement. (iii) That Suggests an increase in the likelihood that any Borrower will become the subject of a Default has occurred and bankruptcy or insolvency proceeding. (iv) Suggests that any Borrower is continuingInDefault. (b) In the exercise of such judgmentjudgement, each the Agent or and each Revolving Credit 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”" and "Cost". (ii) The current financial and business climate of the industry in which each Loan Party any Borrower competes (having regard for that Loan Party’s such Borrower's position in that industry). (iii) General macroeconomic conditions which have a material effect on any Borrower's cost structure or the Loan Parties’ cost structurevalue of Eligible Real Estate Assets. (iv) Material changes in or to the mix of the Borrowers’ any Borrower's Inventory. (v) Seasonality with respect to the Borrowers’ any Borrower's Inventory and patterns of retail sales.. 42 (vi) Such other factors as each the Agent and each Revolving Credit Lender reasonably determine determines as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowersany Borrower. (c) The burden of establishing the failure of any the Agent or any Revolving Credit Lender to have acted in a reasonable manner in such Person’s 's exercise of such discretion shall be the Loan Parties’ Borrowers' and may be made only by clear and convincing evidence.

AGENT'S AND REVOLVING CREDIT 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 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 consideration of any such factors as that Agent or that Revolving Credit Lender, taking into account information of which that Person then has actual knowledge. (b) In the exercise of such reasonable discretion, reasonably believes:the following may be taken into account. (i) Will or reasonably could be expected The reasonable anticipation: of a material adverse change to affect, in more than a 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 The content, completeness, and accuracy of any report or financial information delivered to any the Agent or any Revolving Credit Lender by or on behalf of any Loan Party is incomplete, inaccurate, and the manner by such report or misleading in any material manner or financial information was not prepared in accordance with the requirements of this Agreementprepared. (iii) That The existence of circumstances which suggest an increase in the likelihood that any Loan Party may become the subject of a bankruptcy or insolvency proceeding. (iv) The existence of circumstances suggest that a Default or Event of Default has occurred and is continuing. (bc) In the exercise of such judgmentdiscretion, each the Agent or and each Revolving Credit 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”" and "Cost". (ii) The current financial and business climate of the industry in which each Loan Party competes (having regard for that Loan Party’s Borrower'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’ Loan Parties' Inventory. (v) Seasonality with respect to the Borrowers’ Loan Parties' Inventory and patterns of retail sales. (vi) Such other factors as each the Agent and each Revolving Credit Lender reasonably determine as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the BorrowersLoan Parties. (cd) The burden of establishing the failure of any the Agent or any Revolving Credit 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.

AGENT'S AND REVOLVING CREDIT 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 shall be to such Person’s reasonable 's 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 Revolving Credit Lender, taking into account information of which that Person then has actual knowledge. (b) In the exercise of such discretion, reasonably believes:the following may be taken into account. (i) Will or reasonably could be expected The reasonable anticipation: of an adverse change to affect, in more than a 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 The content, completeness, and accuracy of any report or financial information delivered to any the Agent or any Revolving Credit Lender by or on behalf of any Loan Party is incomplete, inaccurate, Borrower and the manner by such report or misleading in any material manner or financial information was not prepared in accordance with the requirements of this Agreementprepared. (iii) That The existence of circumstances which suggest an increase in the likelihood that any Borrower may become the subject of a Default has occurred and is continuingbankruptcy or insolvency proceeding. (biv) The existence of circumstances which suggest that any Borrower is In Default. (c) In the exercise of such judgmentdiscretion, each the Agent or and each Revolving Credit Lender reasonably also may take into account any of the following factors: (i) Those included in, or tested by, the definitions of Eligible Inventory”, “Eligible AccountsCredit Card Receivables”, “Eligible Third Party Receivables” and “Eligible InventoryCost”. (ii) The current financial and business climate of the industry in which each Loan Party Borrower competes (having regard for that Loan Party’s Borrower's position in that industry). (iii) General macroeconomic conditions which have a material effect on the Loan Parties’ Borrowers' 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 the Agent and each Revolving Credit 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 Revolving Credit 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 REVOLVING CREDIT 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 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 Revolving Credit LenderLender 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 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, each the Agent or and each Revolving Credit Lender reasonably 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 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 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 REVOLVING CREDIT 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 shall be to such Person’s reasonable 's exercise of its reasonable judgment, in good faith (which shall be rebuttably presumed), based upon such Person’s 's consideration of any such factors as that the Agent or that Revolving Credit 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, adversely affect 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 the Agent or any Revolving Credit 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 any material respect in accordance with the requirements of this Agreement. (iii) That Suggests an increase in the likelihood that the Borrower will become the subject of a Default has occurred and bankruptcy or insolvency proceeding. (iv) Suggests that the Borrower is continuingIn Default. (b) In the exercise of such judgment, each the Agent or and each Revolving Credit 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”" and "Cost". (ii) The current financial and business climate of the industry in which each Loan Party the Borrower competes (having regard for that Loan Party’s the Borrower's position in that industry). (iii) 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 with respect to the Borrowers’ Borrower's Inventory and patterns of retail sales. (vi) Such other factors as each the Agent and each Revolving Credit 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 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 evidenceBorrower's.