Common use of Excluded Goods Clause in Contracts

Excluded Goods. Merchant shall retain all responsibility for any goods not included as "Merchandise" hereunder. If Merchant and Agent are unable to agree upon the Retail Price of any item of Near Date Merchandise or Defective Merchandise, or any item of Clearance Merchandise or Out of Season Merchandise which is not marked with a ticketed price, the Merchant may exclude such item from the Sale, and Merchant shall remove such item from the applicable Store as soon as practicable. If Merchant elects at the beginning of the Sale Term, Agent shall accept defective goods, and Near Date Merchandise not included as "Merchandise" hereunder for sale as "MERCHANT CONSIGNMENT GOODS" at prices established by the Agent. The Agent shall retain 25% of the sale price for all sales of Merchant Consignment Goods, and Merchant shall receive 75% of the receipts in respect of such sales. Merchant shall receive its share of the receipts of sales of Merchant Consignment Goods on a weekly basis, immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.8 below. If Merchant does not elect to have Agent sell defective goods or Near Date Merchandise not included as Merchandise, then all such items will be removed by Merchant from the Stores at its expense as soon as practicable after the date hereof. Any layaway, repair or special order goods not constituting Merchandise, together with all contracts relating thereto, shall remain Merchant's liability and responsibility, but Agent shall cooperate with Merchant in administering such matters. Except as expressly provided in this Section 5.4, Agent shall have no cost, expense or responsibility in connection with any goods not included in Merchandise.

Excluded Goods. Merchant shall retain all rights and responsibility for any goods not included as "“Merchandise" hereunder” hereunder (the “Excluded Goods”). If Merchant and Agent are unable At Merchant’s election, to agree upon be exercised on or before the Retail Price of any item of Near Sale Commencement Date Merchandise or Defective (except with respect to the Department Store Merchandise, in which case the election must be exercised on or any item of Clearance Merchandise or Out of Season Merchandise which is not marked with a ticketed pricebefore October 14, the Merchant may exclude such item from the Sale, and Merchant shall remove such item from the applicable Store as soon as practicable. If Merchant elects at the beginning of the Sale Term2009, Agent shall accept defective goods, and Near Date Merchandise including Removed Goods and/or Display Goods (if Merchant so elects), not included as "“Merchandise" ” hereunder for sale as "MERCHANT CONSIGNMENT GOODS" “Agent Commission Sale Goods” at prices established by the Agent. The Except with respect to Department Store Merchandise that Merchant elects to treat as Agent Commission Sale Goods, the Agent shall retain 25% twenty percent (20%) of the sale price for all sales of Merchant Consignment Agent Commission Sale Goods, and Merchant shall receive 75% eighty percent (80%) of the receipts in respect of such sales; provided however, Agent shall have the exclusive right to determine the sale prices for any Removed Goods that Merchant has elected to be treated as Agent Commission Sale Goods. With respect to Department Store Merchandise that Merchant elects to treat as Agent Commission Sale Goods, Agent shall retain twenty five percent (25%) of the sale price for all sales of Agent Commission Sale Goods, and Merchant shall receive its share seventy five percent (75%) of the receipts in respect of sales of Merchant Consignment Goods on a weekly basissuch sales, immediately following the weekly Sale reconciliation by Merchant and Agent pursuant shall have the sole right to Section 8.8 belowdetermine the sale prices and sales strategy for any such goods. Any unsold Agent Commission Sale Goods at the end of the Sale shall be returned to Merchant. If Merchant does not elect to have Agent sell defective goods Excluded Goods (including any Removed Goods or Near Date Merchandise not included Department Store Merchandise) as MerchandiseAgent Commission Sale Goods, then all such items will be removed by Merchant from the Stores at its expense as soon as practicable after the date hereof. Any layaway, repair or special order goods not constituting Merchandise, together with all contracts relating thereto, shall remain Merchant's liability and responsibility, but Agent shall cooperate with Merchant in administering such mattersSale Commencement Date. Except as expressly provided in this Section 5.4, Agent shall have no cost, expense or responsibility in connection with any goods not included in MerchandiseExcluded Goods.

Excluded Goods. Merchant shall retain all rights and responsibility for any goods not included as "Merchandise" hereunder. If Merchant and Agent are unable At Merchant's election, to agree upon be exercised on or before the Retail Price of any item of Near Date Merchandise or Defective Merchandise, or any item of Clearance Merchandise or Out of Season Merchandise which is not marked with a ticketed price, the Merchant may exclude such item from the Sale, and Merchant shall remove such item from the applicable Store as soon as practicable. If Merchant elects at the beginning later of the Sale TermCommencement Date or the expiration of the Removed Goods Option Deadline, Agent shall accept defective goods, and Near Date Merchandise including Removed Goods (if Merchant so elects ), not included as "Merchandise" hereunder for sale as "MERCHANT CONSIGNMENT GOODSMerchant Consignment Goods" at prices established by the Agent. The Agent shall retain 25% thirty percent (30%) of the sale price for all sales of Merchant Consignment Goods, and Merchant shall receive 75% seventy percent (70%) of the receipts in respect of such sales; provided however, Merchant shall have the exclusive right to determine the sale prices for any Removed Goods that Merchant has elected be treated as Merchant Consignment Goods; provided further however, to the extent that Merchant elects to designate, all or a portion of Cosmetics that constitute Removed Goods as Merchant Consignment Goods (the "Cosmetics Consignment Goods"), then (a) such Cosmetic Consignment Goods shall be sold by Agent at a discount of no greater than ten percent (10%) off the original ticketed price of such Cosmetics Consignment Goods, and (b) unless otherwise agreed by Merchant in writing, all unsold Cosmetics Consignment Goods shall be removed from the Sale on the date that is thirty (30) days after the Sale Commencement Date. Merchant shall receive its share of the receipts of sales of Merchant Consignment Goods on a weekly basis, immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.8 8.6 below. If Merchant does not elect to have Agent sell defective goods Defective Merchandise or Near Date Merchandise other merchandise not included as Merchandise, then all such items will be removed by Merchant from the Stores at its expense as soon as practicable after the date hereof. Any layaway, repair or special order goods not constituting Merchandise, together with all contracts relating thereto, shall remain Merchant's liability and responsibility, but Agent shall cooperate with Merchant in administering such mattersSale Commencement Date. Except as expressly provided in this Section 5.45.6, Agent shall have no cost, expense or responsibility in connection with any goods not included in Merchandise.

Excluded Goods. (a) Merchant shall retain all responsibility for any goods not included as "“Merchandise" ” hereunder. If Merchant and Agent are unable to agree upon the Retail Price of any item of Near Date Merchandise elects on or Defective Merchandise, or any item of Clearance Merchandise or Out of Season Merchandise which is not marked with a ticketed price, the Merchant may exclude such item from the Sale, and Merchant shall remove such item from the applicable Store as soon as practicable. If Merchant elects at the beginning of before the Sale TermCommencement Date, Agent shall accept defective goods, and Near Date the Excluded Defective Merchandise not included as "Merchandise" hereunder for sale as "MERCHANT CONSIGNMENT GOODS" “Merchant Consignment Goods” at prices established by the Agent. The Agent shall retain 25% twenty percent (20%) of the sale price (less Sales Taxes) for all sales of Merchant Consignment Goods, and Merchant shall receive 75% eighty percent (80%) of the receipts in respect of such salessales (less Sales Taxes). Merchant shall receive its share of the receipts of sales of Merchant Consignment Goods on a weekly basis, immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.8 8.7 below. If Merchant does not elect to have Agent sell defective goods or Near Date Merchandise not included as the Excluded Defective Merchandise, then all such items will be removed by Merchant from the Stores at its Merchant’s expense as soon as practicable after the date hereof. Any layaway, repair or special order goods not constituting Merchandise, together with all contracts relating thereto, shall remain Merchant's liability and responsibility, but Agent shall cooperate with Merchant in administering such mattersSale Commencement Date. Except as expressly provided in this Section 5.4, Agent shall have no cost, expense or responsibility in connection with any goods or inventory not included in MerchandiseMerchandise (and Merchant shall at its expense remove any unsold Merchant Consignment Goods at the conclusion of the Sale Term). Nothing in this Section 5.4 shall be construed to limit Agent’s obligation to pay any Expenses otherwise due hereunder. (b) Notwithstanding the provisions of Section 5.4(a) above, with respect solely to goods held by Merchant on consignment from the vendors identified on Exhibit 5.4(b) and designated by Merchant pursuant to the option described below (“Selected Consignment Goods”), at Merchant’s option (exercisable at any time and from time to time during the Sale), Merchant may elect to include any Selected Consignment Goods in the Sale as “Merchant Consignment Goods” (as defined in Section 5.4(a) above) provided however that: (i) Agent shall retain only two percent (2%) of the sale price (less Sales Taxes) for such Selected Consignment Goods; and (ii) Agent shall not sell any item of Selected Consignment Goods in the Sale for an amount less than 102.5% of Merchant’s cost therefor (which cost data shall be provided by Merchant to Agent at the time of Merchant’s election); and (iii) such Selected Consignment Goods shall otherwise be treated for all respects hereunder not as Merchandise but as Merchant Consignment Goods.