“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent, from time to time determines in its reasonable commercial discretion exercised in good faith as being appropriate # to reflect any impediments to the realization upon the Collateral subject to the Borrowing Base (including, without limitation, claims that the Administrative Agent determines will need to be satisfied in connection with the realization upon such Collateral), and # to reflect any restrictions in any Additional Permitted Debt Documents on the incurrence of Indebtedness by the Loan Parties, but only to the extent that such restrictions reduce, or with the passage of time could reduce, the amounts available to be borrowed hereunder (including, without limitation as a result of the Loan Parties’ receipt of net proceeds from asset sales) in order for the Loan Parties to comply with such Additional Permitted Debt Documents. Availability Reserves shall include, without limitation, the Priority Payable Reserves, Bank Product Reserves, the Cash Management Reserves, Tax Stamp Reserves, and Inventory Reserves.
“Availability Reserves” means, without duplication of any other Reservesreserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent, (solely with respect to the Borrowing Base) or the (solely with respect to the FILO Borrowing Base) from time to time determines in its reasonable commercial discretion exercised in good faithPermitted Discretion as being appropriate # to reflect anythe impediments to the realizationCollateral Agent’s ability to realize upon the Collateral subjectCurrent Asset Collateral, # to the Borrowing Base (including, without limitation,reflect claims and liabilities that the Administrative Agent or the determines will need to be satisfied in connection with the realization upon such Collateral), andthe Current Asset Collateral, or # to reflect criteria, events, conditions, contingencies or risks which adversely affect any restrictions in any Additional Permitted Debt Documents on the incurrence of Indebtedness by the Loan Parties, but only to the extent that such restrictions reduce, or with the passage of time could reduce, the amounts available to be borrowed hereunder (including, without limitation as a resultcomponent of the Borrowing Base or the FILO Borrowing Base, the Current Asset Collateral or the validity or enforceability of this Agreement or the other Loan Parties’ receiptDocuments or any material remedies of net proceeds from asset sales) in order for the LoanSecured Parties to comply withhereunder or thereunder. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on: # rent; provided that, as long as no Event of Default is continuing, such Additional Permitted Debt Documents. Availability Reserves shall include,be limited to an amount not to exceed the sum of # past due rent for all of the and the Subsidiary Guarantors’ leased locations plus # one (1) month’s rent for all of the and the Subsidiary Guarantors’ leased locations # located in the states of Washington, Virginia, Pennsylvania and all other Landlord Lien States or # that are distribution centers or warehouses, other than, in each case, such locations, distribution centers or warehouses with respect to which the has received a Collateral Access Agreement; # customs duties, and other costs to release Inventory which is being imported into the United States; # outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which would have priority over the Priority Payableinterests of the Collateral Agent in the Current Asset Collateral; # during the continuance of a Cash Dominion Period, salaries, wages and benefits due to employees of the ,; # Customer Credit Liabilities and customer deposits; # warehousemen’s or bailee’s charges and other Liens permitted under [Section 9.1] which would have priority over the interests of the Collateral Agent in the Current Asset Collateral; and # reserves in respect of(A) the Cash Management Reserve, # the Bank Product Reserve and # the Swap Obligations, Reserve; provided that reserves of the type described in, in each case, that any such Availability Reserve under this [clause (vii)] in respect of such Cash Management Obligations shall not be established unless either Excess Availability is less than or an Event of Default is continuing; and # reserves in respect of Obligations in respect of Secured Hedge Agreements, provided that, reserves of the type described in this [clause (viii)] in respect of such Obligations shall not be established unless either Excess Availability is less than or an Event of Defaulthas occurred and is continuing. The amount of any Availability Reserve established or increased by the or the shall # have a reasonable relationship to the event, condition or other matter that is the basis for the Availability Reserve and # be limited to such Availability Reserves and changes as # the determines, in its Permitted Discretion, are appropriate based on the analysis of facts or events first occurring or first discovered by the after the First Amendment Effective Date or that differ from facts or events occurring and known to the on the First Amendment Effective Date or # the determines, in its Permitted Discretion, are appropriate based on the analysis of facts or events first occurring or first discovered by the after the Third Amendment Effective Date or that differ from facts or events occurring and known to the on the Third Amendment Effective Date; provided, this [clause (2)] shall not prohibit the or the from implementing Cash Management Reserves, Bank Product Reserves,Reserves and/or Swap Obligations Reserves in accordance with [clause (vii) above]. Notwithstanding anything herein to the Cash Management Reserves, Tax Stamp Reserves, andcontrary, Availability Reserves shall not duplicate eligibility criteria contained in the definition of Eligible Credit Card Receivables, Eligible Trade Receivables, Eligible In-Transit Inventory, Eligible Inventory Reserves.or Eligible Letter of Credit Inventory. For the avoidance of doubt, the FILO Deficiency Reserve shall not be deemed to be an Availability Reserve.
“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves, if any, as the Administrative Agent and Co-Collateral Agent from time to time determine in their reasonable discretion as being reasonably required pursuant to this Agreement, equal to the sum of # the amount of all sales taxes that have been collected by the BorrowersLoan Parties and not remitted to any state taxing authority when due, # an amount equal to two (2) months’ gross rent for # each leased Store of the BorrowersLoan Parties located in a Landlord Lien State (consistent with the Administrative Agent’s and Co-Collateral Agent’s usual practices) other than those Stores with respect to which the Administrative Agent has received a Collateral Access Agreement, and # each leased distribution center or other location at which Inventory is maintained (but excluding any Store) other than those distribution centers and other locations with respect to which the Administrative Agent has received a Collateral Access Agreement, # Customer Credit Liabilities and customer deposits, # an amount based on rent which is past due for more than ten days for any of the BorrowersLoan Parties’ leased locations, with the exception of past due rent that is the subject of a Permitted Protest as determined by the Administrative Agent and the Co-Collateral Agent in their reasonable discretion, # an amount equal to 50% of the liabilities for gift cards accrued by the BorrowersLoan Parties, as shown on the most recent balance sheet of the Parent Borrower in accordance with GAAP, # such other reserves as the Administrative Agent,Agent and the Co-Collateral Agent from time to time determines in itstheir reasonable commercial discretion exercised in good faith as being appropriate #reasonably required pursuant to reflect any impediments to the realization upon the Collateral subject to the Borrowing Base (including,this Agreement, including, without limitation, claims that the Administrative Agent determines will need to be satisfiedreserves implemented in connection with Permitted Liens and Permitted Indebtedness, but in the realization upon such Collateral), and # to reflect any restrictions in any Additional Permitted Debt Documents oncase of each of the incurrence of Indebtedness by the Loan Parties, butforegoing, only to the extent that such restrictions reduce,Liens, encumbrances and Indebtedness relate or within any way affect the passage of time could reduce, the amounts available to be borrowed hereunder (including, without limitation as a result of the Loan Parties’ receipt of net proceeds from asset sales) in order for the Loan Parties to comply with such Additional Permitted Debt Documents. Availability Reserves shall include, without limitation, the Priority Payable Reserves,Borrowing Base, # Bank Product Reserves, theReserves and # Cash Management Reserves, Tax Stamp Reserves, and Inventory Reserves.
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