Common use of Inventory Value Clause in Contracts

Inventory Value. (a) As promptly as practicable, the Sellers and Purchaser shall cause to be taken a physical inventory of the Inventory, other than a physical inventory of the Inventory at the Stores identified by Purchaser (the “Inventory Taking”), which Inventory Taking shall be completed prior to Closing, unless otherwise agreed to in writing by the Sellers and Purchaser (provided that the Inventory Taking shall not be required to occur on Saturdays and Sundays) (the “Inventory Completion Date”, and the date of the Inventory Taking at each of the Stores, the Clearance Centers and the Warehouse being the “Inventory Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. During the conduct of the Inventory Taking in each of the Clearance Centers, Warehouse and Stores, the applicable location shall be closed to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than five (5) days after the Inventory Completion Date, Sellers shall prepare a statement (“Pre-Closing Inventory Statement”) of the Eligible Inventory Value as of the Closing Date based upon such physical inventory count (“Pre-Closing Eligible Inventory Value”). The “Eligible Inventory Value” shall be equal to, with respect to each item of Eligible Inventory (as defined in the DIP Credit Agreement) of the Sellers at the Closing, the cost (determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file as of the Closing Date ("Cost File"), plus freight and shipping charges at 9.5%, except to the extent of any mistake or omission contained therein. If the Pre-Closing Eligible Inventory Statement reflects less than $50,000,000.00 of Pre-Closing Eligible Inventory Value of the Inventory, if agreed to by Purchaser, in Purchaser's sole discretion, Sellers may count the In-Transit Inventory for purposes of determining the Pre-Closing Eligible Inventory Value of the Inventory.

Inventory Value. (a) As promptly as practicableMaxxim shall provide Buyer with access to its inventory cycle counts relating to the Products upon Buyer's request. Buyer shall have the right to perform spot tests to verify the accuracy of such cycle counts to its satisfaction. If Buyer is not satisfied with the accuracy of such cycle counts, the Sellers and Purchaser it shall cause to be taken a physical inventory notify Maxxim of the Inventory, other than a physical inventory of the Inventory such fact at the Stores identified by Purchaser least twenty (the “Inventory Taking”), which Inventory Taking shall be completed 20) days prior to Closing, unless otherwise agreed to in writing by the Sellers and Purchaser (provided that the Inventory Taking Maxxim shall not be required to occur on Saturdays and Sundays) (the “Inventory Completion Date”, and the date undertake thereafter a physical count of the Inventory Taking Inventories being transferred to Buyer hereunder. Maxxim shall give Buyer at each least 72 hours notice of the Stores, the Clearance Centers time and the Warehouse being the “Inventory Date” for each date on which it plans to commence such Store, Clearance Center physical count and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each Buyer will have the right to have its representatives present during if it so elects. Maxxim shall determine the Inventory Taking, and shall each have the right to review and verify the listing and tabulation value of the Inventory Taking ServiceInventories in accordance with the criteria set forth in Schedule 2.2. During the conduct The value of the Inventory Taking in each of the Clearance Centers, Warehouse and Stores, the applicable location Inventories shall be closed to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than five (5) days after the Inventory Completion Date, Sellers shall prepare a statement (“Pre-Closing Inventory Statement”) of the Eligible Inventory Value as of adjusted on the Closing Date based upon such physical inventory count (“Pre-Closing Eligible Inventory Value”). The “Eligible Inventory Value” shall be equal to, with respect to each item eliminate the value of Eligible Inventory (as defined in any Inventories sold and shipped between the DIP Credit Agreement) date of the Sellers at physical count of the ClosingInventories and the Closing Date and the value of the number of each Product in excess of a 12 months' supply of such Product, and to add the cost (determined by applicable Seller accounting unit) for such item value of Inventory, as reflected in Sellers’ master cost file as any Inventories received between the date of the physical count of the Inventories and the Closing Date ("Cost FileAdjusted Inventories"). (b) Maxxim shall prepare for shipping, plus freight arrange to have shipped by such carrier as Buyer shall designate, at Buyer's cost, and shipping charges have loaded onto such carrier's truck for shipment to Buyer, at 9.5%Buyer's cost, except to the extent of any mistake or omission contained therein. If the Pre-Closing Eligible Inventory Statement reflects less than $50,000,000.00 of Pre-Closing Eligible Inventory Value all of the InventoryInventories located at facilities other than the Clarksburg, if agreed to by Purchaser, in Purchaser's sole discretion, Sellers may West Virginia Facility. Maxxim shall count the In-Transit Inventory Inventories prior to shipment to Buyer. Maxxim shall obtain a receipt from the carrier shipping such Inventories for purposes of determining the Pre-Closing Eligible Inventory Value quantities of the Inventory.Inventories counted by Maxxim and shall promptly provide a copy to Buyer. Maxxim shall take reasonable precautions to ensure that the Inventories will not be damaged prior to shipment. All of the Inventories shall be delivered F.O.

Inventory Value. (a) As promptly as practicable, Seller and Buyer shall conduct an inventory within 10 days of the Sellers and Purchaser shall cause to be taken a physical inventory Closing Date of the Inventory, other than a physical . Seller shall pay the cost of such inventory. Such inventory of shall be used for calculating the Inventory at the Stores identified by Purchaser (the “Inventory Taking”)Value, such amount to be finalized upon a reconciliation to be agreeable to Seller and Buyer, which Inventory Taking in no event shall be completed prior to Closing, unless otherwise agreed to in writing by occur thirty (30) days after the Sellers and Purchaser (provided that the Inventory Taking shall not be required to occur on Saturdays and Sundays) (the “Inventory Completion Closing Date”, and the date of the Inventory Taking at each of the Stores, the Clearance Centers and the Warehouse being the “Inventory Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party the Inventory Taking Service is utilized, then each Value as determined by such inventory differs from the calculation of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. During the conduct of the Inventory Taking in each of the Clearance Centers, Warehouse and Stores, the applicable location shall be closed to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than five (5) days after the Inventory Completion Date, Sellers shall prepare a statement (“Pre-Closing Inventory Statement”) of the Eligible Inventory Value as of the Closing Date based upon such physical inventory count (“Pre-Closing Eligible Inventory Value”). The “Eligible Inventory Value” Date, then the Purchase Price shall be equal to, with respect to each item of Eligible adjusted by such differential amount. If the Inventory Value as determined by such inventory: (a) equals the Inventory Value determined as defined in the DIP Credit Agreement) of the Sellers at Closing Date, then the ClosingEscrow Agent shall release to Seller the Purchase Price Holdback; (b) exceeds the Inventory Value determined as of the Closing Date, then (i) Escrow Agent shall release to Seller the cost Purchase Price Holdback and (ii) Buyer shall pay to Seller the amount of such difference; (c) is less than the Inventory Value determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file as of the Closing Date ("Cost File"the amount of such inventory shortfall being the “Inventory Shortfall”), plus freight and shipping charges at 9.5%, except then (i) Escrow Agent shall release to Seller an amount equal to the extent of any mistake or omission contained therein. If Purchase Price Holdback less the Pre-Closing Eligible Inventory Statement reflects less than $50,000,000.00 of Pre-Closing Eligible Inventory Value amount of the InventoryInventory Shortfall and (ii) Escrow Agent shall release to Buyer an amount equal to the Inventory Shortfall; provided, however, that if agreed to by Purchaser, in Purchaser's sole discretion, Sellers may count the In-Transit Inventory for purposes of determining Shortfall exceeds the Pre-Closing Eligible Inventory Value amount of the InventoryPurchase Price Holdback (such excess being the “Holdback Deficiency”), then (i) Escrow Agent shall release to Buyer the Purchase Price Holdback and (ii) Seller shall immediately pay to Buyer an amount equal to the Holdback Deficiency. Seller agrees that Buyer shall have an administrative claim in the Bankruptcy Case for the amount of the Holdback Deficiency. Any amounts to be paid pursuant to this Section 6.14 shall be by wire transfer of immediately available funds within two (2) business days of the finalization of the reconciliation contemplated herein.

Inventory Value. (a) As promptly as practicable, the Sellers and Purchaser shall cause to be taken a physical inventory of the Inventory, other than a physical inventory of the Inventory at the Stores identified by Purchaser (the “Inventory Taking”), which Inventory Taking shall be completed prior to Closing, unless otherwise agreed to in writing by the Sellers and Purchaser (provided that the Inventory Taking shall not be required to occur on Saturdays and Sundays) (the “Inventory Completion Date”, and the date of the Inventory Taking at each of the Stores, the Clearance Centers and the Warehouse being the “Inventory Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. During the conduct of the Inventory Taking in each of the Clearance Centers, Warehouse and Stores, the applicable location shall be closed to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than Within five (5) business days after the Inventory Completion Closing Date, Sellers the Seller and the Purchaser shall prepare jointly conduct a statement (“Pre-Closing Inventory Statement”) physical count of the Eligible Inventory Value as of the Closing Date based upon such physical inventory count (“Pre-Closing Eligible Inventory Value”). The “Eligible Inventory Value” and the Purchaser shall make or cause to be equal to, with respect to each item of Eligible Inventory (as defined in the DIP Credit Agreement) made a calculation of the Sellers at value of the Closing, the cost (determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file Inventory as of the Closing Date (the "Cost FileInventory Value") in accordance with the Seller's accounting policies applied on a consistent basis for determining standard costs (the "Calculation"), plus freight except that unmerchantable or obsolete Inventory ("Obsolete Inventory") shall be excluded from the Calculation. Any finished goods Inventory with a shelf life expiration date of less than twelve (12) months from the Closing Date shall be considered unmerchantable and shipping charges at 9.5%obsolete for purposes of determining Obsolete Inventory. Any finished goods Inventory not in full unopened case cartons shall also be considered unmerchantable. The Seller will retain the Obsolete Inventory which the Seller shall destroy within ninety (90) days after the Closing Date. Any non-finished goods Inventory that exceeds a 12 month supply (as measured on the basis of the Seller's shipment production forecast for the 12 month period following the Closing Date), except to the extent of such excess, shall be excluded from the Calculation and shall be retained by the Seller. Any Inventory that has been ordered by the Seller but not received prior to the Closing Date shall not be included in the Calculation but will be accepted by the Purchaser and shall be considered to have been purchased by the Seller to support firm purchase orders in accordance with Section 4.1 of the Supply Agreement. The Purchaser shall also provide the Seller with copies of the Calculation and all work papers associated therewith within thirty (30) days after the Closing Date. The Purchaser may not assert a claim for indemnification with respect to any mistake or omission contained thereinInventory that is not included in the Calculation. (b) Thereafter, the Seller shall have a period of thirty (30) days in which to review the Calculation and the work papers associated therewith provided by the Purchaser. If the PreSeller disagrees with all or any part of the Calculation, the Seller shall have the right to notify the Purchaser in writing of such disagreement and their reasons for so disagreeing, in which case the Seller and the Purchaser shall attempt to resolve the disagreement. If within fifteen (15) days after receipt of such notice by Seller, the Seller and the Purchaser are unable to resolve the differences, if any, arising as a result of the Calculation, they or either of them shall submit a statement of all unresolved differences together with copies of the Calculation to KPMG LLP or such other independent accounting firm as shall be mutually agreed (the "Accountants") for a binding and non-Closing Eligible appealable determination to be rendered within thirty (30) days after such submission. All fees and expenses of the Accountants incurred in this capacity shall be billed to and shared by the Seller and the Purchaser equally. (c) If the Calculation reflects an Inventory Statement reflects Value that is either less than $50,000,000.00 of Pre-Closing Eligible Inventory Value or in excess of the InventoryEstimated Inventory Value, if agreed the Purchase Price will be reduced or increased dollar-for-dollar, as the case may be, by the amount of such difference, and the Purchaser will pay the amount of any such increase to by the Seller or the Seller will pay the amount of any such decrease to the Purchaser, in Purchaser's sole discretionimmediately available funds, Sellers may count within five (5) business days after the In-Transit Inventory for purposes final determination of determining the Pre-Closing Eligible Inventory Value provided, however, in no event shall the purchase value of the InventoryInventory exceed One Million One Hundred Thousand Dollars ($1,100,000.00).

Inventory Value. (a) As promptly as practicable, the Sellers and Purchaser shall cause to be taken a physical inventory of the Inventory, other than a physical inventory The actual value of the Inventory to be paid by Buyer to Seller shall be calculated and paid in accordance with this Section 2.2. The portion of the Purchase Price to be paid by Buyer at Closing will include an amount equal to the Stores identified by Purchaser estimated value of the Inventory (the “"Estimated Inventory Taking”Value"), which but not in excess of Three Million Seven Hundred Thousand Dollars ($3,700,000.00) (the "Closing Inventory Taking Payment"). The Estimated Inventory Value shall be completed the amount of Inventory shown on the balance sheet of Seller for the most recently ended accounting period prior to Closing, unless otherwise agreed to prepared in the ordinary course of business of Seller and certified in writing to Buyer as of Closing by the Sellers Chief Financial Officer of Seller. Commencing on the day before the Closing Date, RGIS (or another valuation service acceptable to Buyer and Purchaser (provided that Seller) shall count and compute the value of saleable non-petroleum Inventory Taking shall not be required to occur on Saturdays as of Closing using the valuation procedure and Sundays) (criteria set forth in EXHIBIT 2.2. Buyer and Seller will share equally the “costs of such Inventory Completion Date”, and the date of the Inventory Taking at each of the Stores, the Clearance Centers and the Warehouse being the “Inventory Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, valuation and shall each be permitted to have a representative present during such valuation. In addition, commencing on the right to review day before the Closing Date, Buyer and verify Seller shall jointly determine the listing actual quantities of saleable petroleum Inventory as of Closing (the "Petroleum Inventory") and tabulation shall promptly thereafter compute the value of the Petroleum Inventory Taking Serviceusing the Petroleum Inventory valuation procedure and criteria set forth in EXHIBIT 2.2. During the conduct The determination of the actual Inventory Taking in each of shall commence as soon as practicable on the Clearance Centers, Warehouse day before the Closing Date and Stores, the applicable location continue as rapidly as possible and shall be closed completed within three (3) days. If the computed aggregate value of Inventory exceeds the Closing Inventory Payment, Buyer shall pay the difference to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than five Seller within ten (510) days after the Inventory Completion Datedetermination thereof, Sellers shall prepare a statement (“Pre-Closing Inventory Statement”) of the Eligible Inventory Value as of together with interest thereon from the Closing Date based upon such physical inventory count to the date of payment at the prime rate of Chase Manhattan Bank in New York in effect on the last business day prior to Closing (“Pre-Closing Eligible Inventory Value”"Prime Rate") by wire transfer to Seller's Bank Account; provided, however, that to the extent that the computed value exceeds the sum of Three Million Seven Hundred Thousand Dollars ($3,700,000.00). The “Eligible Inventory Value” , the amount in excess of said Three Million Seven Hundred Thousand Dollars ($3,700,000.00) shall be equal to, paid with respect to each item of Eligible Inventory (as defined in the DIP Credit Agreement) of the Sellers interest at the Closing, the cost (determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file as of Prime Rate from the Closing Date ("Cost File"), plus freight and shipping charges at 9.5%, except to the extent date of any mistake or omission contained thereinpayment as aforesaid on such date as may be determined by Buyer, but not later than sixty (60) days after Closing. If the Pre-Closing Eligible Inventory Statement reflects computed value is less than $50,000,000.00 the Closing Inventory Payment, Seller shall pay the difference to Buyer within ten (10) days after the determination thereof, together with interest at the Prime Rate thereon from the Closing Date to the date of Pre-Closing Eligible Inventory Value of the Inventory, if agreed payment by wire transfer to by Purchaser, in PurchaserBuyer's sole discretion, Sellers may count the In-Transit Inventory for purposes of determining the Pre-Closing Eligible Inventory Value of the InventoryBank Account.

Inventory Value. (a) As promptly as practicable, the Sellers and Purchaser shall cause to be taken a physical inventory of the Inventory, other than a physical inventory of the Inventory at the Stores identified by Purchaser (the “Inventory Taking”), which Inventory Taking shall be completed prior to Closing, unless otherwise agreed to in writing by the Sellers and Purchaser (provided that the Inventory Taking shall not be required to occur on Saturdays and Sundays) (the “Inventory Completion Date”, and the date of the Inventory Taking at each of the Stores, the Clearance Centers and the Warehouse being the “Inventory Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted in accordance with the procedures and instructions to be mutually agreed by the Sellers and Purchaser and made a part of this Agreement as Schedule 3.5(a) (the “Inventory Taking Instructions”). Purchaser shall be responsible for 100% of the fees and expenses of the Inventory Taking Service, if such service is utilized. In the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. During the conduct of the Inventory Taking in each of the Clearance Centers, Warehouse and Stores, the applicable location shall be closed to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than five (5) days after the date of this Agreement, Seller shall deliver to Purchaser a letter signed by Seller’s independent auditors describing in reasonable detail the procedures undertaken by such auditors in connection with measuring and testing the Inventory. At least five (5) Business Days prior to the Closing, Seller shall close each of the Premises and cease all sales and transfers of Inventory Completion thereat (the date of such closure and cessation, the “Shutdown Date”), provided that Seller may continue, from and after the Shutdown Date, Sellers to transfer Excluded Inventory to Seller’s other store locations. As used herein, “Excluded Inventory” shall prepare a statement (“Pre-Closing mean any Inventory Statement”in which the name of Seller or any of its subsidiaries or any tradenames under which the Seller or any of its subsidiaries operates is inscribed or otherwise attached thereto. For purposes of Sections 2.2(b) of and 2.2(c) hereof, shortly after the Eligible Shutdown Date the Inventory Value will be valued as of the Closing Shutdown Date based upon a physical inventory (the cost of which shall be shared equally by Seller and Purchaser) taken of the Inventory on hand as of the Shutdown Date at each of the Premises by RGIS Inventory Specialists (“RGIS”). Seller will make its personnel available to assist RGIS in performing such physical inventory count and shall permit representatives of Purchaser to observe such physical inventory. Upon completion thereof, Seller shall, in consultation with Purchaser and in accordance with Section 2.2(b) of this Agreement, determine the value of the following: (i) inventory of the Business consisting of merchandise in the current assortment; (ii) inventory of the Business consisting of salable merchandise in packaway or other backroom facilities; and (iii) inventory of the Business consisting of discontinued items (the items described in Sections 2.2(a)(i), (ii) and (iii) of this Agreement shall hereinafter be referred to as the “Pre-Closing Eligible Inventory ValueInventory”). The “Eligible Inventory Value” Promptly following such determination, Seller shall deliver to Purchaser written notice thereof, together with reasonable detail showing the calculations therefor. Purchaser shall be equal to, with respect entitled to each item of Eligible Inventory (as defined in the DIP Credit Agreement) perform sample “price testing” of the Sellers at Inventory and shall promptly notify Seller of any initial disagreement with Seller’s determination. In the Closingevent of such disagreement, the cost (determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file as of the Closing Date ("Cost File"), plus freight and shipping charges at 9.5%, except parties shall endeavor to the extent of any mistake or omission contained therein. If the Pre-Closing Eligible Inventory Statement reflects less than $50,000,000.00 of Pre-Closing Eligible Inventory Value of the Inventory, if agreed to by Purchaser, in Purchaser's sole discretion, Sellers may count the In-Transit Inventory for purposes of determining the Pre-Closing Eligible Inventory Value of the Inventoryresolve their differences promptly.

Inventory Value. (a) As promptly as practicableAt the Closing, the Sellers and Purchaser Buyer shall cause to be taken a physical inventory of the Inventory, other than a physical inventory of the Inventory at the Stores identified by Purchaser pay Seller an amount (the “Inventory TakingDeposit”)) as an initial payment for the estimated value of the Inventory as of the Closing Date. Seller shall make a good faith estimate five (5) Business Days prior to the Closing Date of the estimated value of the Inventory and provide a copy thereof to Buyer setting forth the ownership, which types, characteristics and volumes, on a tank, vessel or location basis, of Refinery Feedstock Inventory Taking and Refinery Product Inventory. The Inventory Deposit shall be completed prior an amount equal to Closing, unless otherwise agreed to in writing 95% of the estimated Inventory Value as reasonably estimated by the Sellers and Purchaser (provided that Seller. Seller shall value the Inventory Taking in accordance with the measurement procedures set forth in Exhibit H-1 and in accordance with the valuation procedures set forth in Exhibit H-2. Buyer shall not be required permitted to occur on Saturdays and Sundayshave representatives present to observe any measurements taken by Seller. (b) An independent inspector (the “Testing Agent”) shall be engaged by mutual agreement of Seller and Buyer. The Testing Agent shall measure the Inventory Completion Date”, and as of Effective Time at the date respective locations of the Inventory Taking at each of on the Stores, the Clearance Centers and the Warehouse being the “Inventory Closing Date” for each such Store, Clearance Center and Warehouse). The Sellers and Purchaser shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if the Sellers and Purchaser mutually agree, shall jointly conduct the Inventory Taking without utilizing a third party Inventory Taking Service. The Inventory Taking shall be conducted measured by the Testing Agent in accordance with the procedures set forth on Exhibit H-1 attached hereto. The Testing Agent shall issue a written report (the “Testing Agent Report”) within twenty (20) days after the Closing Date setting forth the volumes and instructions quantities of the Inventory as of the Effective Time. The fees and expenses of the Testing Agent shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer. (c) As soon as practicable, but in any event no later than ten (10) days following receipt of the Testing Agent Report, Seller shall cause to be mutually agreed by the Sellers prepared and Purchaser and made delivered to Buyer a part of this Agreement as Schedule 3.5(a) statement (the “Inventory Taking InstructionsStatement”) setting forth the volume of the Inventory as measured by the Testing Agent as of the Closing Date and the value of the Inventory (the “Inventory Value”) which shall be determined in accordance with the procedures set forth on Exhibit H-2. Buyer shall give Seller notice of its acceptance of or objection to the computations in the Inventory Statement no later than twenty (20) days following its receipt of the Inventory Statement (the date of Seller’s receipt of such acceptance or rejection, or the expiration of such 20 day period with no notice having been given, shall be the “Inventory Notice Date”). Purchaser If Buyer fails to give such notice before the end of such twenty (20) day period, then the Inventory Statement will be deemed final and binding upon the Parties. If Buyer gives such notice to Seller of Buyer’s objection within such twenty (20) days, and Buyer and Seller are unable to resolve the issues in dispute within seven (7) days after delivery of such notice of objection, each of Buyer’s and Seller’s positions with respect to the computation of the Inventory Value will be submitted to a party mutually selected by the Parties (the “Inspector”) for resolution. If the computation of the Inventory Value is submitted to the Inspector for resolution, (x) each Party will furnish to the Inspector such workpapers and other documents and information relating to the disputed issues as the Inspector may request and are available to that Party, and will be afforded the opportunity to present to the Inspector any material relating to such issues and to discuss the same with the Inspector; (y) the Inspector’s determination or computation of the Inventory Value shall be responsible for 100% of binding and conclusive on the Parties and will be deemed to be the final Inventory Value; and (z) the fees and expenses of the Inventory Taking Service, if Inspector for such service is utilized. In determination will be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer. (d) If the event that no third party Inventory Taking Service is utilized, then each of the Sellers and Purchaser shall bear their respective costs and expenses incurred in the Inventory Taking. The Sellers and Purchaser shall each have the right to have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation sum of the Inventory Taking ServiceValue minus the Inventory Deposit (the “Inventory Balance”) is greater than zero, then Buyer shall pay to Seller, without offset or deduction, an amount equal to the Inventory Balance by wire transfer of immediately available funds to such account or accounts of Seller, as may be designated by Seller. During If the conduct amount of the Inventory Taking in each Balance is less than zero, then Seller shall pay to Buyer, without offset or deduction, an amount equal to such deficit by wire transfer of the Clearance Centersimmediately available funds to such account or accounts of Buyer, Warehouse and Stores, the applicable location as may be designated by Buyer. All such undisputed amounts shall be closed paid by the relevant Party to the public and no sales or other transactions shall be conducted until the Inventory Taking at such location has been completed. No later than Party within five (5) days after Business Days of the Inventory Completion Computation Date, Sellers . All disputed amounts shall prepare a statement be paid by the relevant Party to the other Party within five (“Pre-Closing Inventory Statement”5) Business Days of the Eligible Inventory Value as resolution of such disputed amounts. All amounts payable pursuant to this Section 3.03 (both disputed and undisputed amounts) shall bear interest from and including the Closing Date based upon date payment is scheduled to be made to, but excluding, the date of payment at a rate per annum equal to seven percent (7%) for the first thirty (30) days such physical inventory count payment is past due and at a rate per annum equal to fifteen percent (“Pre-Closing Eligible Inventory Value”)15%) for all subsequent periods such payment is past due, in either event not to exceed the maximum rate permitted by Applicable Law. The “Eligible Inventory Value” Such interest shall be equal topayable at the same time as the payment to which it relates and shall be calculated on the basis of a year of 365 days and the actual number of days for which due. (e) Each Party agrees that, following the Closing, it shall not take any actions with respect to the accounting books, records, policies and procedures of itself or its Affiliates that would obstruct or prevent the preparation of the Inventory Statement as provided in this Section 3.03. The Parties shall cooperate with each item of Eligible Inventory (as defined other in the DIP Credit Agreement) preparation of the Sellers at Inventory Statement, if requested by another Party. (f) Except as set forth in Section 3.03(b), Buyer and Seller shall each bear its own expenses incurred in connection with the Closing, the cost (determined by applicable Seller accounting unit) for such item of Inventory, as reflected in Sellers’ master cost file as preparation and review of the Closing Date ("Cost File"), plus freight and shipping charges at 9.5%, except to the extent of any mistake or omission contained therein. If the Pre-Closing Eligible Inventory Statement reflects less than $50,000,000.00 of Pre-Closing Eligible Inventory Value of the Inventory, if agreed to by Purchaser, in Purchaser's sole discretion, Sellers may count the In-Transit Inventory for purposes of determining the Pre-Closing Eligible Inventory Value of the InventoryStatement.