Common use of Payments to Merchant Clause in Contracts

Payments to Merchant. (a) As a guaranty of Agent’s performance hereunder, Agent guarantees to Merchant that the Proceeds of the Sale shall equal or exceed seventy and one half percent (70.5%) (the “Guaranty Percentage”) of the aggregate Cost Value of the Merchandise included in the Sale (the “Guaranteed Amount”) plus an amount sufficient to pay all Expenses. (b) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, and (z) one percent (1.0%) of the aggregate Cost Value of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety percent (90%) to Merchant and ten percent (10%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value of the Merchandise as determined by the amount of Gross Rings, as adjusted for shrinkage per this Agreement.

Payments to Merchant. (a) As a guaranty of Agent’s performance hereunder, Agent guarantees to that Merchant that the Proceeds of the Sale shall equal or exceed seventy and one half receive percent (70.5( %) (the “Guaranty Percentage”) of the aggregate Cost Value of the Merchandise included in the Sale (the “Guaranteed Amount”) plus an amount sufficient to pay all Expenses), which Guaranteed Amount shall be paid at such time and in such manner as shall hereinafter be provided. (b) To the extent that Proceeds exceed the sum of (xi) the Guaranteed Amount, , (yii) Expenses of the Sale, Sale and (ziii) one percent (1.0( %) of the aggregate Cost Value of the Merchandise included in the Sale (the “Agent’s Fee”) (the sum of (xi), (yii) and (ziii), the “Initial Sharing Threshold”), then all Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70( %) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety percent (90%) to Merchant and ten percent (10( %) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds Threshold shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value of the Merchandise as determined by (A) the amount final certified report of the Inventory Taking Service after verification and reconciliation thereof by Agent and Merchant, (B) the aggregate Cost Value of the Distribution Center Merchandise and On-Order Merchandise included in the Sale, and (C) the aggregate Cost Value of the Merchandise subject to Gross Rings, as adjusted for shrinkage per this Agreement. (c) The Guaranty Percentage has been fixed based upon the aggregate Cost Value of the Merchandise, without taking into account the Global Inventory Adjustment, being not less than $ (the “Merchandise Threshold”). To the extent that the aggregate Cost Value of the Merchandise included in the Sale, without taking into account the Global Inventory Adjustment, is less than the Merchandise Threshold, the Guaranty Percentage shall be adjusted in accordance with Exhibit 3.1(c) annexed hereto (in addition to any adjustment applicable pursuant to section 11.1(m) hereof), as and where applicable. In lieu of the foregoing adjustment to the Guaranty Percentage, Merchant may, at its election, transfer into the Closing Stores additional goods acceptable to Agent in its reasonable determination with respect to mix, balance, quality, pricing and margin, to meet the minimum threshold (the “Transferred Goods”) which Transferred Goods shall be included as Merchandise; provided however, within 48 hours of the completion of the Inventory Taking in the Closing Stores and the selection of the Transferred Goods, Agent shall provide Merchant with written notice designating the Closing Store locations to which Merchant shall ship such Transferred Goods. Irrespective of the achievement of the Merchandise Threshold, the Merchant may also transfer such other finished goods inventory to the Closing Stores as Agent shall agree, and such inventory shall be deemed to be Transferred Goods for all purposes of this Agreement.

Payments to Merchant. (a) As a guaranty of Agent’s performance hereunder, Agent guarantees to that Merchant that the Proceeds shall receive one hundred two and six tenths of the Sale shall equal or exceed seventy and one half percent (70.5102.6%) (the “Guaranty Percentage”) of the aggregate Cost Value of the Merchandise included in the Sale (the “Guaranteed Amount”) plus an amount sufficient to pay all Expenses.), which Guaranteed Amount shall be paid at such time and in such manner as shall hereinafter be provided (b) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, Sale and (z) one five percent (1.05%) of the aggregate Cost Value of the Merchandise included in the Sale (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety fifty percent (9050%) to Merchant and ten fifty percent (1050%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds Threshold shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, Amount and the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value of the Merchandise as determined by (A) the amount final certified report of the Inventory Taking Service after verification and reconciliation thereof by Agent and Merchant, (B) the aggregate Cost Value of the Distribution Center Merchandise and On-Order Merchandise included in the Sale, and (C) the aggregate Cost Value of the Merchandise subject to Gross Rings, as adjusted for shrinkage per this Agreement. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay such Recovery Amount as part of the Final Reconciliation under Section 8.7, as soon as commercially reasonable after the Sale Termination Date. (c) The Guaranty Percentage has been fixed based upon the aggregate Cost Value of the Merchandise, excluding Additional Xxxx Xxxxxx Merchandise, Excess On-Going Store Merchandise, and Additional Wamsutta Merchandise (collectively the “Additional Transfer Merchandise”), and without taking into account the Global Inventory Adjustment, being not less than $55,000,000 (the “Merchandise Threshold”). To the extent that the aggregate Cost Value of the Merchandise included in the Sale, without taking into account the Global Inventory Adjustment, is less than the Merchandise Threshold, the Guaranty Percentage shall be adjusted in accordance with Exhibit 3.1(c) annexed hereto (in addition to any adjustment applicable pursuant to section 11.1(m) hereof), as and where applicable. In lieu of the foregoing adjustment to the Guaranty Percentage, Merchant may, at its election, transfer into the Stores additional goods acceptable to Agent with respect to mix, balance, quality, pricing and margin, at Merchant’s expense, to meet the minimum threshold (the “Transferred Goods”) which Transferred Goods shall be included as Merchandise; provided however, within 48 hours of the completion of the Inventory Taking in the Stores and the selection of the Transferred Goods, Agent shall provide Merchant with written notice designating the Store locations to which Merchant shall ship such Transferred Goods. Irrespective of the achievement of the Merchandise Threshold, the Merchant may also transfer such other finished goods inventory to the Stores as Agent shall agree, and such inventory shall be deemed to be Transferred Goods for all purposes of this Agreement.

Payments to Merchant. (a) As a guaranty of Agent’s performance hereunder, Agent guarantees to Merchant that the Proceeds of the Sale shall equal or exceed seventy and one half seventy-two percent (70.572%) (the “Guaranty Percentage”) of the aggregate Cost Value of the Merchandise included in the Sale (the “Guaranteed Amount”) plus an amount sufficient to pay all Expenses. (b) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, and (z) three and one half percent (1.03.5%) of the aggregate Cost Value of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety fifty percent (9050%) to Merchant and ten fifty percent (1050%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds Threshold shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value of the Merchandise as determined by the amount of Gross Rings, as adjusted for shrinkage per this Agreement. (c) The Guaranty Percentage has been fixed based upon the aggregate Cost Value of the Merchandise, being not less than $190,000,000 (the “Merchandise Threshold”), or in excess of $220,000,000 (the “Merchandise Ceiling”). To the extent that the aggregate Cost Value of the Merchandise included in the Sale is less than the Merchandise Threshold, or in excess of the Merchandise Ceiling, the Guaranty Percentage shall be adjusted in accordance with Exhibit 3.1(c) annexed hereto, as and where applicable. In the event that the aggregate Cost Value of the Merchandise in Merchant’s perpetual inventory file is less than $197,500,000 as of the Sale Commencement Date, Merchant shall deliver to the Stores (at Agent’s direction) additional goods of similar mix, quality and assortment as set forth on Exhibit 12.1(n) to be included as Merchandise with an aggregate Cost Value sufficient to remedy such shortfall, which goods must be received at the Closing Stores designated by Agent no later than the 7th day after the Sale Commencement Date.

Payments to Merchant. (a) As a guaranty of Agent’s 's performance hereunder, Merchant shall receive from Agent guarantees to Merchant that the Proceeds sum of the Sale shall equal or exceed seventy and one half percent (70.5%) (the “Guaranty Percentage”) 77% of the aggregate Cost Value of the Merchandise Saleable Inventory included in the Sale Closing Merchandise Inventory (determined in accordance with section 5.4 below), plus (ii) the amount payable for the Defective Merchandise as agreed to by Agent and Merchant (the “"Defective --------- Merchandise Amount") plus (iii) the Additional Inventory Amount (the amounts ------------------ payable under clauses (i), (ii), and (iii) are collectively referred to herein as the "Guaranteed Amount”) plus an amount sufficient "); provided, however, that Agent shall have no ----------------- -------- ------- obligation hereunder to pay all Expensesany amount to Merchant with respect to Defective Merchandise for which Merchant and Agent are unable to agree upon a Cost Value (as adjusted for the applicable prevailing discount price) or Merchandise received at the Stores on or after the 30th day after the Sale Commencement Date. (b) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, and (z) one percent (1.0%) of the aggregate Cost Value of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety percent (90%) to Merchant and ten percent (10%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount has been calculated and the Recovery Amount will be calculated agreed upon based upon Merchant's representation that the aggregate Cost Retail Value of the Merchandise as determined of the Sale Commencement Date will not be less than $45 million (the "Merchandise Threshold"), that all such Merchandise will conform to --------------------- Merchant's representations and warranties contained herein, and that no representations, warranties or covenants of Merchant hereunder have been breached. Merchant and Agent agree that in the event that the final report of the inventory taking service described in Section 5.1 below indicates that the Retail Value of Merchandise is less than the Merchandise Threshold, then the percentage on which the Guaranteed Amount is based shall be reduced by .25% for every $1,000,000 the amount aggregate Merchandise Retail Value is less than $45 million; provided, however, under no circumstances will the aggregate Retail -------- ------- Value of Gross Rings, as adjusted for shrinkage per the Merchandise be less than $33,000,000. (c) For purposes of this Agreement, "Retail Value" with respect to ------------ any Merchandise shall mean the database regular selling price or SKU price per unit for such Merchandise.

Payments to Merchant. (ai) As a guaranty of Agent’s 's performance hereunder, Merchant shall receive from Agent guarantees to Merchant that the Proceeds sum of the Sale shall equal or exceed seventy and one half percent (70.5%) (the “Guaranty Percentage”) 45.55% of the aggregate Cost Value Retail Price of the Merchandise, less any credits provided for Returned Merchandise included in the Sale under Section 8.5 hereof (the “"Guaranteed Amount”) "), plus an amount sufficient to pay the payment of all Sale Expenses. (bii) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, and (z) one percent (1.0%) of the aggregate Cost Value of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety percent (90%) to Merchant and ten percent (10%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, the Recovery Amount, if any, Amount in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon (A) the final report of the Merchandise by the inventory taking service after verification thereof by Agent and Merchant, and (B) the aggregate Cost Value amount of Gross Rings (as defined herein), adjusted for shrinkage as provided in Section 6.3 hereof. (iii) The Guaranteed Amount has been calculated and agreed upon based upon Merchant's representation that the aggregate Retail Price (as defined in section 5.3 hereof) of the Merchandise as determined of the Sale Commencement Date (as defined herein) will not be less than $12 million (the "Merchandise Threshold"), that all such Merchandise will conform to Merchant's representations and warranties contained herein, and that no material representations, warranties or covenants of Merchant hereunder have been or shall be breached. Merchant and Agent agree that in the event that the final report of the inventory taking service indicates that the aggregate Retail Price of the Merchandise is less than the Merchandise Threshold, then the Guaranteed Amount shall be reduced pro rata as follows: for every $100,000 of Merchandise or pro rata portion thereof (at Retail Price) by which the amount aggregate Retail Price of Gross Ringsthe Merchandise falls below the Merchandise Threshold, as adjusted for shrinkage per this Agreementthe Guaranteed Amount shall be reduced by two-tenths of one percent (.2%) or pro rata portion thereof; provided, however, in no event shall the aggregate Retail Price of the Merchandise be less than $9 million.

Payments to Merchant. (a) As Subject to Merchant’s compliance in all material respects with all representations, warranties, covenants, terms and conditions set forth in this Agreement, as a guaranty of Agent’s performance hereunder, Agent guarantees to that Merchant that the Proceeds of the Sale shall equal or exceed seventy and one half receive ninety percent (70.590.0%) (the “Guaranty Percentage”) of the aggregate Cost Value of the Merchandise included in the Sale (the “Guaranteed Amount”) plus an amount sufficient to pay all Expenses. (b) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, and (z) one percent (1.0%) of the aggregate Cost Value of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold which Guaranteed Amount shall be shared seventy percent (70%) to Merchant paid at such times and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold in such manner as shall hereinafter be shared ninety percent (90%) to Merchant and ten percent (10%) to Agentprovided. All amounts, if any, to be received by the Merchant from Proceeds in excess of the Sharing Thresholds shall be referred to as the “Recovery Amount.” The Agent shall pay to the Merchant the Guaranteed Amount, Amount and the Recovery Amount, Sharing Amount due to Merchant (if any, ) in the manner and at the times specified in Section 3.3 below3.3. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value of the Merchandise as determined by (A) the amount final certified report of the Inventory Taking Service after verification and reconciliation thereof by Agent and Merchant; (B) the aggregate Cost Value of the Merchandise subject to Gross Rings, ; and (C) any other adjustments to Cost Value as adjusted for shrinkage per expressly contemplated by this Agreement. (b) The Guaranty Percentage has been fixed based upon the aggregate Cost Value of the Merchandise included in the Sale being sixty-five million dollars ($65,000,000) (the “Merchandise Threshold”). To the extent that the aggregate Cost Value of the Merchandise included in the Sale is less than, or greater than, the Merchandise Threshold, the Guaranty Percentage shall be adjusted in accordance with Exhibit 3.1(b) annexed hereto. (c) The Guaranty Percentage has also been fixed based upon the aggregate Cost Value of the Merchandise included in the Sale as a percentage of the aggregate Retail Value of the Merchandise included in the Sale, such percentage being 48.2% (the “Cost Factor Threshold”). To the extent that the ratio of the aggregate Cost Value of the Merchandise included in the Sale to the aggregate Retail Value of the Merchandise included in the Sale is a percentage other than the Cost Factor Threshold, the Guaranty Percentage shall be adjusted in accordance with Exhibit 3.1(c) annexed hereto. (d) The adjustments set forth in Sections 3.1(b) and 3.1(c) of this Agreement, if applicable, shall operate independently and cumulatively.

Payments to Merchant. (ai) As a guaranty of Agent’s performance hereunder, Agent guarantees to Guarantied that Merchant that shall receive the Proceeds sum of the Sale shall equal or exceed seventy and one half percent (70.5%) 22.9% (the “Guaranty Percentage”) of Percentage”)of the aggregate Cost Value Retail Price of the Merchandise included in the Sale (the “Guaranteed Amount”) ), plus an amount sufficient to pay all Expensesreimbursement of Expenses (as defined herein). (bii) To the extent that Proceeds exceed the sum of (x) the Guaranteed Amount, (y) Expenses of the Sale, Sale and (z) one and one-half of one percent (1.01.5%) of the aggregate Cost Value Retail Price of the Merchandise (the “Agent’s Fee”) (the sum of (x), (y) and (z), the “Initial Sharing Threshold”), then Proceeds of the Sale above the Initial Sharing Threshold shall be shared seventy percent (70%) to Merchant and thirty percent (30%) to Agent until Agent has received an aggregate amount (including the Agent’s Fee and its 30% sharing) equal to three percent (3%) of the aggregate Cost Value of the Merchandise (the “Additional Sharing Threshold” and collectively with the “Initial Sharing Threshold”, the “Sharing Thresholds”), and then all remaining Proceeds of the Sale above the Additional Sharing Threshold shall be shared ninety seventy-five percent (9075%) to Merchant and ten twenty-five percent (1025%) to Agent. All amounts, if any, to be received by the Merchant from Proceeds Agent in excess of the Sharing Thresholds Threshold shall be referred to as the “Recovery Amount”.” The (iii) Agent shall pay to the Merchant the Guaranteed Amount, Amount and the Recovery Amount, if any, in the manner and at the times specified in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be calculated based upon the aggregate Cost Value Retail Price of the Merchandise as determined by the aggregate amount of Gross Rings, Rings of Merchandise included in the Sale (as adjusted for shrinkage and the Global Inventory Adjustment per this Agreement), if applicable, and (C) the aggregate amount of any Additional Clearance Merchandise received in the Stores after the completion of the Inventory Taking at such Stores. (b) The Guaranteed Amount and Recovery Amount have been calculated and agreed upon based upon the estimation that (i) the aggregate Retail Price of the Merchandise included in the Sale, including Remaining Merchandise, but without taking into account the Global Inventory Adjustment will not be less than $18 million (the “Merchandise Threshold”) and no more than $19,850,000 (the “Merchandise Ceiling”). Merchant and Agent agree that in the event that the Retail Price of Merchandise is less than the Merchandise Threshold, or more than the Merchandise Ceiling, then, unless otherwise agreed to between Merchant and Agent, the Guaranty Percentage on which the Guaranteed Amount is based shall be reduced as provided in Exhibit 3.1(b) attached hereto. Merchant and Agent agree that to the extent the inclusion of Additional Clearance Merchandise in the Sale would cause the aggregate Retail Price of the Merchandise included in the Sale to exceed the Merchandise Ceiling then such event shall not trigger an adjustment pursuant to this Section 3.1(b); provided however, to the extent that the inclusion of Additional Clearance Merchandise would cause the aggregate Retail Price of the Merchandise included in the Sale to exceed the Merchandise Ceiling, then the inclusion of such excess amount shall require the prior consent of the Lenders, Merchant and Agent.