Common use of Additional Agent Merchandise Clause in Contracts

Additional Agent Merchandise. (a) Agent shall be entitled to include in the Sale additional merchandise procured by Agent which is of like kind as, and no lesser quality to, the Merchandise located in the Stores (“Additional Agent Merchandise”). Agent shall be responsible for payment of all costs associated with any Additional Agent Merchandise. All proceeds of the sale of Additional Agent Merchandise shall remain the exclusive property of Agent. (b) The Additional Agent Merchandise shall be at all times subject to the control of Agent. If requested by Agent, Merchant shall, at Agent’s expense, insure the Additional Agent Merchandise and, if required, promptly file any proofs of loss with regard to same with Merchant’s insurers. (c) Any transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant. Merchant acknowledges, and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code in effect in the State of Delaware (the “UCC”). Agent is hereby, and shall be through the Approval Order, granted a first priority security interest in (i) the Additional Agent Merchandise and (ii) the Additional Agent Merchandise Proceeds, which security interest shall be deemed perfected pursuant to the Approval Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that Agent is hereby authorized to deliver any notices and file any financing statements and amendments thereof under the applicable UCC identifying Agent’s interest in the Additional Agent Merchandise and any proceeds from the sale thereof as consigned goods thereunder and Merchant as the consignee therefor, and Agent’s security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceeds. (d) Agent shall provide signage in the Stores notifying customers that the Additional Agent Merchandise has been included in the Sale.

Additional Agent Merchandise. (a) Set forth on Exhibit 8.10(a) is Agent’s preliminary Additional Agent shall be entitled Merchandise purchasing plan, which Merchant has approved and which is subject to include modification by Agent, in the Sale additional merchandise procured by exercise of Agent’s reasonable discretion, from time to time from and after the date hereof. Subject to compliance with applicable law, Agent which is shall, at Agent’s sole cost and expense, supplement the Merchandise in the Stores with goods of like kind as, and no lesser quality to, the Merchandise located as is customarily sold in the Stores (the “Additional Agent Merchandise”). Sales of Additional Agent Merchandise shall be run through Merchant’s cash register systems; provided however Agent shall be responsible for payment of all costs associated with any mark the Additional Agent Merchandise. All proceeds of Merchandise using either a “dummy” SKU or department number or in such other manner so as to distinguish the sale of Additional Agent Merchandise shall remain from the exclusive property sale of Agent. (b) The Additional Merchandise. Merchant and Agent Merchandise shall be at all times subject to agree that the control of Agent. If requested by Agent, Merchant shall, at Agent’s expense, insure the Additional Agent Merchandise and, if required, promptly file any proofs of loss with regard to same with Merchant’s insurers. (c) Any transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant in all respects and not a consignment for security purposes. At all times and for all purposes (other than for purposes of Merchant. Merchant acknowledges’s Sharing Amounts as contemplated by Section 3.2(a)), and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code in effect in the State of Delaware (the “UCC”). Agent is hereby, and shall be through the Approval Order, granted a first priority security interest in (i) the Additional Agent Merchandise and their proceeds shall be the exclusive property of Agent, and no other person or entity (iiincluding without limitation Merchant, Lender, or any third person claiming a security interest in ▇▇▇▇▇▇▇▇’s property) shall have any claim against any of the Additional Agent Merchandise Proceeds, which security interest or their proceeds. The Additional Agent Merchandise shall be deemed perfected pursuant at all times remain subject to the Approval Order without exclusive control of Agent, and Agent shall, as an Expense of the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that Agent is hereby authorized to deliver any notices and file any financing statements and amendments thereof under the applicable UCC identifying Agent’s interest in Sale, insure the Additional Agent Merchandise and and, if required, promptly file any proceeds from the sale thereof as consigned goods thereunder and Merchant as the consignee therefor, and proofs of loss with regard thereto with Agent’s security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceedsinsurers. (db) In addition to all other compensation due to Agent under this Agreement, Merchant shall provide signage in pay Agent an “Agent’s Supplemental Additional Merchandise Fee” equal to three percent (3.0%) of the Stores notifying customers that actual cost of goods of the Additional Agent Merchandise has been included sold pursuant to this Agreement (including without limitation Agent’s actual freight costs associated with the Additional Agent Merchandise). Agent covenants to Merchant that Agent shall not add any “lift” to its cost of goods of the Additional Agent Merchandise. Merchant shall pay Agent the Agent’s Supplemental Additional Merchandise Fee in connection with each Weekly Sale Reconciliation with respect to purchases of Additional Agent Merchandise sold by Agent during each then prior week (or at such other mutually agreed upon time in the Salecase of Additional Agent Merchandise sold pursuant to Section 3.2(b) above).

Additional Agent Merchandise. (a) Agent shall be entitled to include in the Sale additional supplemental merchandise procured by Agent which is of like kind askind, and no lesser quality to, to the Merchandise located in the Stores as of the Sale Commencement Date (“Additional Agent Merchandise”). Agent shall be responsible for payment of all the costs associated with procuring any Additional Agent Merchandise. All proceeds Merchandise and all costs and expenses related to, or incurred in connection with, the marketing and sale of the sale of Additional Agent Merchandise, which costs shall not constitute Expenses hereunder; provided, however, that such costs shall not include any occupancy expenses related to the Indiana Distribution Center. Notwithstanding anything to the contrary in this Agreement or the Sale Guidelines, Purchaser shall have the right to supplement the Merchandise in the Sale at the Designation Rights Stores with Additional Agent Merchandise procured by Purchaser in any manner it determines, without adherence to any restrictions set forth in this Section 8.9, the second sentence of Section 11.2(f) or the Sale Guidelines; provided that Purchaser shall remain not deliver Additional Agent Merchandise to any Designation Rights Store until the exclusive property of AgentInventory Taking at such Designation Rights Store is complete; provided further that, to the extent Purchaser elects not to use a “dummy” SKU in connection with such Additional Agent Merchandise, Merchant shall have no obligation to account for the processing thereof. (b) The Additional Agent Merchandise shall be at all times and for all purposes be the exclusive property of, and subject to the control of of, Agent. Merchant, the Administrative Agent and the Lenders shall cooperate with Agent with respect to all filings (including, without limitation, UCC-1 financing statements) and other actions to the extent reasonably requested by Agent in connection with the Additional Agent Merchandise. If requested by Agent, Merchant shall, at Agent’s expensesole expense (and not as an Expense hereunder), insure the Additional Agent Merchandise and, if required, promptly file any proofs of loss with regard to same with Merchant’s insurers. (c) Any transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant. Merchant acknowledges, and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code in effect in the State of Delaware (the “UCC”). Agent Each of Purchaser and JV Agent, as applicable, is hereby, and shall be through the Approval Order, hereby granted a legal, valid and binding first priority security interest in (i) the Additional Agent Merchandise and (ii) the Additional Agent Merchandise Proceedsproceeds, which security interest Agent shall be authorized to perfect prior to entry of the Approval Order, but which security interest shall, if not sooner perfected, be deemed perfected pursuant to the Approval Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that Agent each of Purchaser and JV Agent, as applicable, is hereby authorized to deliver any notices and file any financing statements and amendments thereof under the applicable UCC identifying Purchaser or JV Agent’s ’s, as applicable, interest in the Additional Agent Merchandise (and any proceeds from the sale thereof thereof) as consigned goods thereunder and the Merchant as the consignee therefor, and Purchaser or JV Agent’s ’s, as applicable, security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceeds). The Administrative Agent, on behalf of itself and the Lenders, hereby consents to the payment to Agent of Additional Agent Merchandise Proceeds (subject to Agent’s obligation with respect to the Additional Agent Merchandise Fee payable hereunder). (d) In order to distinguish the Additional Agent Merchandise from the Merchandise located in the Stores, Agent shall ▇▇▇▇ the Additional Merchandise using either a “dummy” SKU or department number, or in such other manner as shall enable Merchant and Agent to distinguish sales of the Additional Agent Merchandise from sales of the Merchandise. Additionally, Agent shall provide signage in the Stores notifying customers that the Additional Agent Merchandise has been included in the Sale.