Common use of Time of Payments Clause in Contracts

Time of Payments. (a) No later than two (2) business days after the later of (x) entry of the Approval Order and (y) execution hereof (the "Payment Date"), Agent shall pay seventy-five percent (75%) of the Guaranteed Amount (the "Guaranteed Amount Deposit") in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Inventory Report"), and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agent. (b) To secure payment of the unpaid portion of the Guaranteed Amount and any other amounts due from Agent to Merchant hereunder, Agent shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated by the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3

Time of Payments. (a) No later than two (2) On the first business days after the later of (x) entry day following issuance of the Approval Order and (y) execution hereof (the "“Payment Date"”), Agent shall pay seventy-five percent (75%i) 90% of the estimated Guaranteed Amount to Merchant (the “Guaranteed Amount Deposit”) by wire transfer to the account(s) designated on Exhibit 3.3(a) annexed hereto (the “Merchant Account”), (ii) the Agent Sale FF&E Guarantee and (iii) the aggregate amount calculated in accordance with Section 7.4. The Guaranteed Amount Deposit shall be based on the estimated Cost Value (as determined in accordance with Section 5.1 of the Agreement) of the Guaranteed Amount (the "Guaranteed Amount Deposit") in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of on the Sale Commencement Date as reflected in Merchant's books and records the master inventory file(s) provided to Agent on June 19, 2011, which shall be rolled forward to the Sale Commencement Date (the "Estimated Guarantee “Perpetual Inventory File”), provided that, the Guaranteed Amount Deposit shall not take into account any On-Order Goods or Xxxxxxx Goods, which shall be paid when received in the applicable weekly reconciliation. (b) The balance of the Guaranteed Amount (the “Remaining Guaranteed Amount"”). , shall be paid as follows: Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash Amount, which amount shall be paid to the Merchant Account no later than the earlier of (i) the date ten that is forty five (1045) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Final Inventory Report"), and the Agent's ’s failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may and GECC to draw upon the Agent Letter of Credit (as defined below) in accordance with section 3.4 to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Final Inventory ReportReport as verified and reconciled, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Final Inventory Report has been issuedissued as verified and reconciled. In the event that there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 8.6 hereof. (c) All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day. (d) Merchant agrees that if at any time during the Sale Term, Merchant holds any undisputed amounts due to Agent as Proceeds hereunder, Agent may, in its discretion, offset such Proceeds being held by Merchant against any amounts due and owing to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that except as provided in the following sentence, if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant under this Agreement, Agent may, in its discretion, offset such amounts being held by it against any amounts due and owing by, or required to be paid by, Merchant hereunder. Notwithstanding the foregoing or any other provision to the contrary herein, in no event shall Agent offset any amounts against the proceeds realized from the disposition of the Agent Sale FF&E. (e) If and to the extent that Agent over-funds any amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report, then Merchant agrees to promptly reimburse such undisputed overpayment amounts to Agent. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agent. (b) To secure payment of the unpaid portion over-funded amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report have been received by GECC and any other amounts due from Agent to Merchant hereunderhave not been reimbursed by Merchant, Agent shall deliver inform GECC by written notice of such overpayment and GECC agrees to Merchant an irrevocable standby letter disgorge such overpayment to Agent within two (2) business days of credit, naming those parties to be designated by the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3such notice.

Time of Payments. (a) No later than two (2) business days after the later Immediately following each weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 and payment of (x) entry Expenses pursuant to Section 4.2 by Agent and until payment in full of the Approval Order and Guaranteed Amount, Merchant shall retain, on account of the Guaranteed Amount, the remaining portion of the Proceeds with respect to the prior week (y) execution hereof (each an “Estimated Guaranteed Amount Payment” and, in the "Payment Date"aggregate, the “Estimated Guaranteed Amount Payments”), Agent shall pay seventy-five percent (75%) . Upon payment in full of the Guaranteed Amount (and provided that the "Guaranteed Amount Deposit") Security Conditions in cashSection 16 are satisfied, all Proceeds shall be transferred to Agent pursuant to Section 7, which amount Proceeds shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"applied per Section 3.2(a). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Inventory Report"), and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory Report, the Guaranteed Amount is greater than has not been paid in full by the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed AmountSale Termination Date, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agent. (b) To secure payment of the unpaid portion of the Guaranteed Amount to Merchant within ten business days thereafter. (b) If and to the extent that Agent over-funds any other amounts in respect of the Guaranteed Amount hereunder on account of the Merchandise due hereunder, then Merchant agrees to promptly reimburse such undisputed overpayment amounts to Agent. (c) Merchant agrees that if at any time during the Sale Term, Merchant holds any undisputed amounts due from to Agent as Proceeds hereunder, whether by any payment by Agent (including, without limitation, payment of the Remaining Guaranteed Amount Payment, if applicable) or any draw on the Letter of Credit by Merchant, Agent may, in its discretion, offset such Proceeds being held by Merchant against any amounts due and owing by Agent to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant under this Agreement, Agent may, in its discretion, offset such amounts being held by Agent against any amounts due and owing by, or required to be paid by, Merchant hereunder. (d) Agent agrees that if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant as Proceeds hereunder, whether by any payment by Merchant or any draw on the Merchant LC by Agent, Merchant may, in its discretion, offset such Proceeds being held by Agent shall deliver against any amounts due and owing by Merchant to Agent pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant an irrevocable standby letter of creditand Agent further agree that if at any time during the Sale Term, naming those parties Merchant holds any undisputed amounts due to Agent under this Agreement, Merchant may, in its discretion, offset such amounts being held by Merchant against any amounts due and owing by, or required to be designated by the Merchant (the "x") as beneficiarypaid by, substantially in the form of Exhibit 3.3Agent hereunder.

Time of Payments. (a) No later than two (2) On the first business days after the later of (x) entry day following issuance of the Approval Order and (y) execution hereof (the "“Payment Date"”), Agent shall pay seventy-five to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety percent (7590%) of the Guaranteed Amount product of (i) the "Guaranteed Amount Deposit") in cash, which amount shall be wired to Guaranty Percentage and the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the estimated aggregate Cost Value of the Merchandise to be included in the Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date as reflected in Merchant's books and records Date, without taking into account the Global Inventory Adjustment (the "“Estimated Guarantee Guaranteed Amount"”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). Agent shall pay the unpaid and undisputed The balance of the Guaranteed Amount in cash Amount, if any, shall be paid by Agent by wire transfer to Merchant no later than the account designated by GECC on the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the Merchant (the "Inventory Report"), and the Agent's failure to pay such undisputed balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon Guaranteed Amount actually paid as set forth above, within three (3) business days after the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portionFinal Inventory Report has been issued. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount shall be paid to as part of the Merchant Final Reconciliation under Section 8.7, as earned weekly. In the event that soon as commercially reasonable after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereofSale Termination Date. To the extent that the Final Reconciliation as provided for below shows that Agent is owed the Agent has overpaid Adjustment Amount, and the Guaranteed Lenders received the Adjustment Amount, then the MerchantLenders shall promptly, upon the Lenders and the Lenders written request of Agent, shall cause any overpayment to be immediately refunded disgorge and remit the Adjustment Amount to Agent. (b) To secure All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the unpaid portion of information necessary to complete the Guaranteed Amount and wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any other amounts such payment is due from Agent to Merchant hereunderis not a business day, Agent then such payment shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated made by wire transfer on the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3next business day.

Time of Payments. (a) No later than two (2) On the first business days after day following the later of (x) entry of the Approval Order and (y) execution hereof Sale Commencement Date (the "“Payment Date"”), Agent shall pay seventy-five to Merchant an amount (the “Initial Guaranty Payment”) equal to eighty percent (7580%) of the Guaranteed Amount product of (i) the "Guaranteed Amount Deposit"Guaranty Percentage and (ii) in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the estimated aggregate Cost Value of the Merchandise (including DC Merchandise) to be included in the Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date as reflected in Merchant's books and records (the "“Estimated Guarantee Guaranteed Amount")”) by wire transfer to the account designated by Merchant. Agent shall pay the unpaid and undisputed The balance of the Guaranteed Amount in cash Amount, if any, shall be paid by Agent by wire transfer to the account designated by Merchant no later than on the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit final report of the aggregate Cost Value of the Merchandise by included in the Sale as reflected in the Inventory Taking Servicereport (the “Final Inventory Report”), after review, reconciliation and verification thereof by the Agent and the Merchant in consultation with HSBC Bank USA (the "Inventory Report"“Trustee”), as trustee for the lien holders under that certain second lien indenture dated as of November 26, 2008 and that certain third lien indenture dated as of November 26, 2008 (collectively the “Indenture Lien Holders”), and General Electric Capital Corporation, in its capacity as Agent for the lenders under that certain Fourth Amended and Restated Credit Agreement dated as of November 9, 2007 by and between, among other parties, the Merchant, Carlyle & Co. Jewelers LLC, L. Congress, Inc, Finlay Enterprises, Inc., certain additional subsidiaries thereof, the lenders party thereto (collectively, the “Secured Lenders”), and General Electric Capital Corporation, as Agent for the Secured Lenders (such agent, the “Lender Agent's failure ”), as such Fourth Amended and Restated Credit Agreement has been and may hereafter be amended, supplemented, restated or otherwise modified from time to pay such balance or undisputed portion shall entitle time (the Lender Agent on behalf of the Merchant may draw upon the Agent Letter of “Credit (as defined below) Agreement”), to the extent that any amounts under the Credit Agreement remain unpaid; provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the immediate payment to be made shall be of such the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment and/or all other amounts funded by Agent on account of the Guaranteed Amount exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed portionbalance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount shall be paid to as part of the Merchant Final Reconciliation under Section 3.7, as earned weekly. In the event that soon as commercially reasonable after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereofSale Termination Date. To the extent that the Final Reconciliation as provided for below shows that Agent is owed the Agent has overpaid the Guaranteed Adjustment Amount, then Agent shall make demand for payment of Merchant and Merchant shall promptly tender payment of the MerchantAdjustment Amount to Agent. In the event that Merchant fails to tender payment of the Adjustment Amount, Agent shall make demand for payment thereof upon the Lenders Trustee and the Lenders AgentTrustee shall make payment of the Adjustment Amount, shall cause any overpayment to be immediately refunded to Agentwithin five (5) business days after receipt of such notice. (b) To secure All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the unpaid portion of information necessary to complete the Guaranteed Amount and wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any other such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day. (c) Agent agrees that if at any time during the Sale Term, Merchant holds any amounts due from to Agent hereunder, Merchant may in its discretion offset such amounts being held by Merchant against any amounts due and owing by, or required to be paid by, Agent under this Agreement. In addition, Merchant agrees that if at any time during the Sale Term, Agent holds any amounts due to Merchant hereunder, Agent shall deliver to Merchant an irrevocable standby letter of creditmay in its discretion offset such amounts being held by Agent against any amounts due and owing by, naming those parties or required to be designated paid by Merchant under this Agreement. Any such setoffs should be reconciled as part of the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3weekly reconciliation.

Time of Payments. (a) No later than two (2) On the first business days after the later of (x) entry day following issuance of the Approval Order and (y) execution hereof (the "“Payment Date"”), Agent shall pay seventy-five to Merchant an amount (the “Initial Guaranty Payment”) equal to ninety percent (7590%) of the Guaranteed Amount product of (i) the "Guaranteed Amount Deposit") in cash, which amount shall be wired to Guaranty Percentage and the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the estimated aggregate Cost Value of the Merchandise to be included in the Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date as reflected in Merchant's books and records (the "“Estimated Guarantee Guaranteed Amount"”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). Agent shall pay the unpaid and undisputed The balance of the Guaranteed Amount in cash Amount, if any, shall be paid by Agent by wire transfer to Merchant no later than the account designated by GECC on the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within ten (10) days after its completion and (ii) the date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the Merchant (the "Inventory Report"), and the Agent's failure to pay such undisputed balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon Guaranteed Amount actually paid as set forth above, within three (3) business days after the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portionFinal Inventory Report has been issued. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount shall be paid to as part of the Merchant Final Reconciliation under Section 8.7, as earned weekly. In the event that soon as commercially reasonable after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereofSale Termination Date. To the extent that the Final Reconciliation as provided for below shows that Agent is owed the Agent has overpaid Adjustment Amount, and the Guaranteed Lenders received the Adjustment Amount, then the MerchantLenders shall promptly, upon the Lenders and the Lenders written request of Agent, shall cause any overpayment to be immediately refunded disgorge and remit the Adjustment Amount to Agent. (b) To secure All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the unpaid portion of information necessary to complete the Guaranteed Amount and wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any other amounts such payment is due from Agent to Merchant hereunderis not a business day, Agent then such payment shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated made by wire transfer on the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3next business day.

Time of Payments. ARCHITECT’s compensation shall be paid by DISTRICT to ARCHITECT monthly, in arrears in accordance with the conditions following: i. Payments on account of basic services shall be made monthly in proportion to services performed within each phase as reasonably determined by DISTRICT up to the following amounts (aor as otherwise agreed): UPON COMPLETION OF PERCENTAGE OF TOTAL FEES CUMULATIVE PERCENTAGE OF TOTAL FEES Schematic design phase 10 10 Design development phase 15 25 Construction documents phase 45 70 DSA approval 5 75 Bid phase 5 80 Construction phase 20 100 ii. Payments on account of additional services, shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon. iii. Each payment to ARCHITECT shall be made monthly in the usual course of DISTRICT business after presentation by ARCHITECT of an invoice approved by DISTRICT’s authorized representative designating services performed, method of computation of amount payable, and amount payable. For Basic Services, the ARCHITECT shall be paid within thirty (30) No later than two (2) business days after the later from receipt of (x) entry approved invoice. A service charge of the Approval Order one and (y) execution hereof (the "Payment Date"), Agent shall pay seventyone-five half percent (751.5%) of the Guaranteed Amount (the "Guaranteed Amount Deposit") in cash, which amount unpaid balance shall be wired charged monthly on all undisputed amounts unpaid after thirty (30) days. iv. Should DISTRICT cancel this Agreement at any time, ARCHITECT shall, upon notice of such cancellation, forthwith cease all services hereunder. If the Agreement is canceled for any reason other than a material breach of the Agreement by ARCHITECT, the ARCHITECT’s total fee for all services performed shall be computed under the foregoing provisions of this Agreement to cover services actually performed to the account date of such notice and shall include compensation for services within the phase of performance at which the ARCHITECT’S services stopped, proportionate to be designated by the Merchant. Agent shall calculate the amount degree of completion of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount")work on such phase. Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking ServiceIn addition, after verification thereof by the Agent and the Merchant (the "Inventory Report"), and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount ARCHITECT shall be paid a cancellation expense fee, which shall compensate ARCHITECT for all expenses, including but not limited to start up costs, incurred by ARCHITECT as a result of cancellation of the Agreement. The cancellation expense fee shall be an amount computed as a percentage of the total compensation earned at the time of cancellation as follows: a. Twenty percent if termination occurs during or prior to the Merchant as earned weeklySchematic Design Phase; or b. Ten percent if termination occurs during the Design Development Phase; c. Five percent if termination occurs subsequent to the Design Development Phase. v. Should DISTRICT cancel this Agreement due to a material breach of the Agreement by ARCHITECT, the ARCHITECT shall upon notice of such cancellation forthwith cease all services hereunder. In such event, ARCHITECT’S total fee for all services performed shall be computed under the event that after foregoing provisions of this Agreement to cover services satisfactorily performed to the issuance date of such notice and shall include compensation for services within the phase of performance at which the services stopped proportionate to the degree of completion of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any ARCHITECT’s satisfactorily completed services on such dispute shall be resolved in the manner and at the times set forth in Section 3.6 hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agentphase. (b) To secure payment of the unpaid portion of the Guaranteed Amount and any other amounts due from Agent to Merchant hereunder, Agent shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated by the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3

Time of Payments. (a) No later than two one (21) business days day after the later of (x) entry of the Approval Order and (y) execution hereof (the "Payment Date"), Agent shall pay seventyeighty-five percent (7585%) of the Guaranteed Amount (the "Guaranteed Amount Deposit") (reduced by any amounts paid prior to the payment of the Guaranteed Amount Deposit) in cashreadily available funds, which amount shall be wired to the account to be designated by following account: PNC Bank, National Association, ABA# 000000000, Account # 8026261117, Account Name; Anchor Blue Inc. for the Merchant. benefit of PNC Bank, National Association, Reference: Anchor Blue (the “PNC Account”), Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Retail Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash readily available funds, which amount shall be wired to Merchant the PNC Account no later than the earlier of (i) the date ten that is thirty (1030) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Retail Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Inventory Report"), and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may to draw upon the Agent Letter of Credit (as defined below) in accordance with Section 3.3(b) to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory ReportReport as verified, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Inventory Report has been issued. In the event that there is a dispute with respect to the reconciliation of the aggregate Cost Retail Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 5.2(c) hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agent. (b) To secure payment of the unpaid portion of the Guaranteed Amount and any other amounts due from Agent to Merchant hereunder, Agent shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated by the Merchant (the "x") Lender Agent as beneficiary, substantially in the form of Exhibit 3.33.3(b) attached hereto, in the original face amount equal to the unpaid portion of the Estimated Guaranteed Amount as of the Payment Date (as amended and in effect from time to time, the "Agent Letter of Credit") and shall contain terms, provisions and conditions mutually acceptable to Merchant, Lender Agent, PNC Business Credit, and Agent. As used in this Agreement, "Lender Agent" shall mean PNC Business Credit, as Agent ("PNC") so long as PNC has not been paid in full from the Estimated Guaranteed Amount; provided, further, that, once PNC has been paid in full, Lender Agent shall mean the Term Loan Agent so long as the Term Loan Agent has not been paid in full from the Estimated Guaranteed Amount; provided, further, that, thereafter Lender Agent shall mean Merchant. Agent shall cause the Agent Letter of Credit to be delivered to Lender Agent no later than the Payment Date (or, in the event that the Payment Date falls on a weekend, no later than the next business day). The Agent Letter of Credit shall expire no less than sixty

Time of Payments. (a) No later than two (2) business days after On the later of (x) entry of the Approval Order and (y) execution hereof Sale Commencement Date (the "“Payment Date"”), Agent shall pay seventy-five percent 80% of the estimated Guaranteed Amount to Merchant (75%the “Guaranteed Amount Deposit”) by wire transfer to the account(s) designated on Exhibit 3.3(a) annexed hereto (the “Merchant Account”). The Guaranteed Amount Deposit shall be based on the estimated Cost Value (as determined in accordance with Section 5.1 of the Agreement) of the Merchandise in the Stores on the Sale Commencement Date. (b) The balance of the Guaranteed Amount (the "“Remaining Guaranteed Amount Deposit") in cashAmount”), which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise paid as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"). follows: Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash Amount, which amount shall be paid to the Merchant Account no later than the earlier of (i) the date ten that is forty five (1045) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Final Inventory Report"), and the Agent's failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may and GECC to draw upon the Agent Letter of Credit (as defined below) in accordance with section 3.4 to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Final Inventory ReportReport as verified and reconciled, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) business days after the Final Inventory Report has been issuedissued as verified and reconciled. In the event that there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Taking, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 8.6 hereof. (c) All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day. (d) Xxxxxxxx agrees that if at any time during the Sale Term, Xxxxxxxx holds any undisputed amounts due to Agent as Proceeds hereunder, Agent may, in its discretion, offset such Proceeds being held by Merchant against any amounts due and owing to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that except as provided in the following sentence, if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant under this Agreement, Agent may, in its discretion, offset such amounts being held by it against any amounts due and owing by, or required to be paid by, Merchant hereunder. Notwithstanding the foregoing or any other provision to the contrary herein, in no event shall Agent offset any amounts against the proceeds realized from the disposition of the Agent Sale FF&E. (e) If and to the extent that Agent over-funds any amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report, then Xxxxxxxx agrees to promptly reimburse such undisputed overpayment amounts to Agent. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agent. (b) To secure payment of the unpaid portion over-funded amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report have been received by GECC and any other amounts due from Agent to Merchant hereunderhave not been reimbursed by Xxxxxxxx, Agent shall deliver inform GECC by written notice of such overpayment and GECC agrees to Merchant an irrevocable standby letter disgorge such overpayment to Agent within two (2) business days of credit, naming those parties to be designated by the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3such notice.

Time of Payments. (a) No later than two Subject to Section 8.8 below, during each week’s reconciliation as provided for in section 8.8 during period between the Sale Commencement Date and the Payment Date (2as defined below), Merchant shall collect all of the Proceeds of the Sale of Merchandise (the “Interim Sale Proceeds”) and (x) all Interim Sale Proceeds shall first be applied to the payment of Expenses that are incurred during the Interim Sale Period and become due and owing (collectively, the “Interim Sale Period Expenses”) and (y) all remaining Interim Sale Proceeds after payment of Interim Sale Period Expenses (the “Remaining Interim Sale Proceeds”) shall be applied by Merchant against the Guaranteed Amount (collectively, the “Interim Guaranty Installments”) until the Guaranteed Amount shall have been paid in full. (b) On the first business days after day following the later of (xa) entry the Sale Commencement Date, or (b) the date that (i) Merchant and Agent execute a security agreement documenting Merchant’s grant of a security interest set forth in Section 16.12 hereof, that is reasonably acceptable to Merchant and Agent (the Approval Order “Security Agreement”), and (yii) execution hereof Merchant, Agent and Fleet Retail Group, Inc. (“Fleet”), and S.A.C. Capital Associates, LLC, each as administrative and collateral agent for certain of Merchant’s secured lenders (collectively, the "“Lenders”), execute a subordination agreement that is reasonably acceptable to Merchant, Agent and the Lenders, with respect to the Merchandise and the Proceeds from the Sale of such Merchandise (as the case may be, the “Payment Date"”), Agent shall pay seventy-five Merchant eighty percent (7580%) of the difference between (x) the estimated Guaranteed Amount Amount, calculated based upon the estimated aggregate Retail Price of the Merchandise to be included in the Sale, as reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date, and after applying the Global Inventory Adjustment (the "“Estimated Guaranteed Amount Deposit"Amount”) in cash, which amount shall be wired to and (y) the account to be designated by the Merchant. Agent shall calculate the aggregate amount of the Interim Guaranty Installments applied by Merchant towards the Estimated Guaranteed Amount Deposit based upon in accordance with Section 3.3(a) hereof (such difference hereinafter, the Cost Value of “Payment Date Installment”, and together with the Merchandise as of Interim Guaranty Installments, the Sale Commencement Date as reflected in Merchant's books and records “Initial Guaranty Payment”). (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed c) The balance of the Guaranteed Amount, if any, or of the Estimated Guaranteed Amount in cash shall be paid by Agent to Merchant no later than by delivering such amounts to Fleet for Merchant’s account, on the date that is the earlier of (i) the date ten (10) business days after the last Sale Commencement Termination Date in the Stores (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) (the “Final Payment Date”), and (ii) the second first business day following the issuance of the audit final audited report of the aggregate Cost Value Retail Price of the Merchandise calculated by the Inventory Taking ServiceGross Rings, after verification and reconciliation thereof by the Agent and the Merchant (the "Inventory “Final Gross Rings Report"), ”) and the Agent's ’s failure to pay such balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may Fleet to draw upon the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portion. To the extent that the balance; provided, however, Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory Report, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the and Agent shall pay use their reasonable best efforts to reconcile and verify the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant Final Gross Rings Report within two seven (27) business days after the Inventory Report has been issuedlast Sale Termination Date in the Stores. In the event there is a any dispute with respect to the reconciliation of the aggregate Cost Value Retail Price of the Merchandise following the Inventory TakingGross Rings, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.6 3.4(b) hereof. In the event that the Final Gross Rings Report is issued after payment of the Estimated Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the Estimated Guaranteed Amount actually paid as set forth above, within two (2) business days after the Final Gross Rings Report has been issued. (d) Within ten (10) business days after the Sale Commencement Date, Agent shall establish its own bank accounts, dedicated solely for the deposit of Proceeds and the disbursement of amounts payable by Agent hereunder, which accounts may be the Designated Merchant Accounts so long as Merchant, Agent and the Lenders agree on an appropriate protocol for such use and remittance of Proceeds (the “Agency Accounts”). Merchant shall, promptly upon Agent’s request, execute and deliver all necessary documents to open and maintain the Agency Accounts. Agent shall exercise sole signatory authority and control with respect to the Agency Accounts; provided however, upon request, Agent shall deliver to Merchant copies of all bank statements and other information relating to such accounts. Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all bank fees and charges, including wire transfer charges, related to the Agency Accounts and or Designated Merchant Accounts, whether received during or after the Sale Term. Upon Agent’s designation of the Agency Accounts, all Proceeds of the Sale (including credit card proceeds) shall be deposited into the Agency Accounts. During the period between the Sale Commencement Date and the later of (a) the Payment Date or (b) the date Agent designates the Agency Accounts, all Proceeds of the Sale (including credit card proceeds), shall be collected by Agent and deposited on a daily basis into Merchant’s existing accounts designated for the Stores (the “Designated Merchant Accounts”). Commencing on the first business day following the Payment Date, and on each business day thereafter (or as soon thereafter as is practicable), until such time as Agent designates the Agency Accounts, Merchant shall promptly pay to Agent by wire funds transfer all collected funds constituting Proceeds deposited in such accounts (but not any other funds, including, without limitation, any proceeds of Merchant’s inventory sold prior to the Sale Commencement Date or at any of Merchant’s retail store locations not included on Exhibit 1 hereto, or collections of accounts receivable at the Store level, if any). During this interim period, Agent shall control the Proceeds of the Sale, and, provided no Event of Default by Agent has occurred and is continuing, the Lenders shall not take any action with respect to such Proceeds deposited into the Designated Merchant Accounts, which shall inure solely for the benefit of Agent, subject only to Agent’s payment obligations hereunder. (e) Agent shall be permitted to satisfy a portion of its payment obligations under this Section 3.3 by offsetting undisputed Proceeds held by Merchant against such payment obligations; provided, however, nothing contained in this Section 3.3(d) shall be deemed to amend, modify or otherwise affect the timing of Agent’s obligations to pay the Guaranteed Amount or the estimated balance of the Guaranteed Amount pursuant to Section 3.3(a). (f) All payments by Merchant to Agent or Agent to Merchant hereunder shall be by wire transfer of immediately available funds. (g) To the extent that the Final Gross Rings Reconciliation as provided for below shows that the Agent has overpaid Initial Guaranty Payment exceeded the amount due Merchant in respect of the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, (i) Merchant shall cause any overpayment to be immediately refunded to Agent. , and (bii) To secure payment of if such overpayment was received by the unpaid portion of the Guaranteed Amount and Lenders, then, notwithstanding any other amounts due from Agent rights or claims that the Lenders may have against Merchant, the Lenders shall immediately refund such overpayment to Merchant hereunder, Agent shall deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated by the Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3Agent.

Time of Payments. (a) No later than two (2) On the first business days after the later of (x) entry day following issuance of the Approval Order and (y) execution hereof (the "“Payment Date"”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to seventy-five percent (75%) of the Guaranteed Amount (the "Guaranteed Amount Deposit") in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise as of the Sale Commencement Date as reflected in Merchant's books and records (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier product of (i) the date ten (10) Guaranty Percentage and the estimated aggregate Retail Value of the Merchandise to be included in the Sale as reflected on Merchant’s books and records on the last business days after day immediately preceding the Sale Commencement Date (in which case payment shall be of the undisputed portion of “Estimated Guaranteed Amount”) by wire transfer to the account designated by Merchant prior to the Payment Date (the “Designated Account”). The balance of the Estimated Guaranteed Amount) and (ii) , if any, shall be paid by Agent by wire transfer to the account designated by Merchant on the second business day following the issuance of the audit final report of the aggregate Cost Retail Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by the Agent and the Merchant (as reviewed, reconciled, and verified by Agent and Merchant, the "“Final Inventory Report"”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile and verify the Agent's failure Inventory Taking within ten calendar (10) days after its completion. In the event Merchant and Agent are unable to reconcile and verify the Inventory Taking within such ten (10) day period, both Agent and Merchant agree to submit any disputes for expedited resolution by the Bankruptcy Court. In the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, Merchant shall pay such balance or undisputed portion shall entitle to Agent the Lender amount (the “Adjustment Amount”) by which the Initial Guaranty Payment exceeds the Guaranteed Amount and any other amounts paid by Agent on behalf account of the Merchant may draw upon Guaranteed Amount within one business day after the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portionFinal Inventory Report has been issued. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.6, as soon as commercially reasonable after the Sale Termination Date. (b) All amounts required to be paid by Agent or Merchant under any provision of this Agreement shall be paid made by wire transfer of immediately available funds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the Merchant wire transfer has been received by Agent or Merchant, as earned weeklyapplicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that after the issuance of the Inventory Report, the Guaranteed Amount date on which any such payment is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, the Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of the Merchant within two (2) due is not a business days after the Inventory Report has been issued. In the event there is a dispute with respect to the reconciliation of the aggregate Cost Value of the Merchandise following the Inventory Takingday, then any such dispute payment shall be resolved in made by wire transfer on the manner and at the times set forth in Section 3.6 hereof. To the extent that the Final Reconciliation as provided for below shows that the Agent has overpaid the Guaranteed Amount, then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately refunded to Agentnext business day. (bc) To secure payment of Merchant agrees that if at any time during the unpaid portion of the Guaranteed Amount and Sale Term Merchant holds any other amounts due from to Agent to Merchant hereunder, Agent shall deliver may in its discretion offset such amounts being held by Merchant against any amounts due and owing to Merchant an irrevocable standby letter of creditpursuant to this Section 3.3 or otherwise under this Agreement. In addition, naming those parties Merchant and Agent further agree that if at any time during the Sale Term, Agent holds any amounts due to Merchant under this Agreement, Agent may in its discretion offset such amounts being held by it against any amounts due and owing by, or required to be designated by the paid by, Merchant (the "x") as beneficiary, substantially in the form of Exhibit 3.3hereunder.