Common use of Additional Merchandise Clause in Contracts

Additional Merchandise. (a) Agent shall be entitled to include in the Sale at the Stores (i) additional merchandise procured by Agent that is of like kind and quality to the Merchandise located in the Stores and (ii) additional merchandise procured by Agent on consignment ((i) and (ii) being collectively defined as “Additional Agent Merchandise”); provided that, the actual documented cost paid by Agent (which shall not include any “lift”) for, and the actual documented freight, handling and insurance expenses and/or any other documented actual costs relating to, the Additional Agent Merchandise shall be Expenses hereunder payable out of Proceeds (to the extent sufficient). The Agent agrees and covenants that the Additional Agent Merchandise shall be purchased or otherwise obtained on an arm’s length basis from unaffiliated third parties and for the exclusive purpose of the Sale hereunder, and that it will not include merchandise from Agent’s or Agent’s affiliates own inventory or other current or prior sales conducted by Agent; provided that, Agent may include Agent merchandise on consignment at the Current Stores as Additional Agent Merchandise hereunder; provided however, to the extent that any of the expenses associated with such goods were reimbursed to Agent under the Existing Agreements, such Expenses shall not be included as an Expense hereunder Agent shall ship Additional Agent Merchandise directly to and from the Stores and not through Merchant’s Distribution Centers. (b) At all times and for all purposes, the Additional Agent Merchandise shall be the exclusive property of Agent. The transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant. 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 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) In order to distinguish the Additional Agent Merchandise from the Merchandise located in the Stores, Agent shall affix distinctive tags and/or other identifying markings on all items of Additional Agent Merchandise, which shall enable Merchant and Agent, and a reasonable consumer, to distinguish the sales of the Additional Agent Merchandise from the sale of the Merchandise presently included in the Sale at the Stores. Additionally, Agent shall provide signage in the Stores reasonably notifying customers that the Additional Agent Merchandise has been included in the Sale.

Additional Merchandise. (a) Agent shall be entitled entitled, at its expense, to include in the Sale at the Closing Stores (i) additional merchandise procured by Agent that is of like kind and quality similar type to the Merchandise located in the Closing Stores and (ii) additional merchandise procured by Agent on consignment consignment, including, without limitation, rugs, wall coverings, bedding and accessories ((i) and (ii) being collectively defined as “Additional Agent Merchandise”); provided that, the actual documented cost paid by Agent (which shall not include any “lift”) for, and the actual documented freight, handling and insurance expenses and/or any other documented actual costs relating to, the Additional Agent Merchandise shall be Expenses hereunder payable out of Proceeds (to the extent sufficient). The Agent agrees and covenants that the Additional Agent Merchandise shall be purchased or otherwise obtained on an arm’s length basis from unaffiliated third parties and for the exclusive purpose of the Sale hereunder, and that it will not include merchandise from Agent’s or Agent’s affiliates own inventory or other current or prior sales conducted by Agent; provided that, Agent may include Agent merchandise on consignment at the Current Stores as Additional Agent Merchandise hereunder; provided however, to the extent that any of the expenses associated with such goods were reimbursed to Agent under the Existing Agreements, such Expenses shall not be included as an Expense hereunder Agent shall ship Additional Agent Merchandise directly to and from the Stores and not through Merchant’s Distribution Centers. (b) At Except as otherwise set forth in this Agreement, at all times and for all purposes, the Additional Agent Merchandise and its proceeds shall be the exclusive property of Agent. The transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant. 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 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) In order to distinguish the Additional Agent Merchandise from the Merchandise located in the Closing Stores, Agent shall affix distinctive tags and/or other identifying markings on all items of Additional Agent Merchandise, which shall enable Merchant and Agent, and a reasonable consumer, Agent to distinguish the sales of the Additional Agent Merchandise from the sale of the Merchandise presently included in the Sale at the Closing Stores. Additionally, Agent shall provide signage in the Closing Stores reasonably notifying customers that the Additional Agent Merchandise has been included in the Sale.