Common use of Inventory Consideration Clause in Contracts

Inventory Consideration. On each Closing Date, representatives of Sellers and Purchaser shall take a physical count of all Inventory located at each Location and the ▇▇▇▇▇▇▇▇ and ▇▇▇▇ Location that is to be Transferred on such Closing Date. Inventory which, in the exercise of good faith, is determined to be outdated or otherwise not of merchantable quality or which is listed in Schedule 3.03 as excluded from the transaction herein contemplated shall be excluded and shall be Excluded Assets. The Inventory at each Location and at the ▇▇▇▇▇▇▇▇ and ▇▇▇▇ Location shall be valued, for purposes of this Agreement, as follows: Beer and Pop (Soda) will be valued at the Company’s net cost, based on the last invoice for each product delivered to the Location. Cigarettes and Tobacco Products will be valued at the Company’s net wholesale cost, based on Sellers’ paid invoices or the wholesale supplier’s quoted price on the applicable Closing Date, as Company may elect and provide suitable evidence acceptable to the Purchaser, less any manufacturer’s promotional monies (buy-down funds) attributable thereto, received or receivable by the Company. Prepared and Fast-Food Products will be valued at the Company’s net cost, based on the vendor’s invoice for the last delivery of each type of product received at the Location, less any discounts and promotional allowances taken by the Company with respect thereto. All Grocery-Category Product, including non-DSD beverage products, will be valued at a thirty-five percent (35%) markdown from the retail price on the applicable Closing Date. All DSD Product exclusive of beer and pop, including but not limited to milk, breads and cakes, chips, nuts, snacks and ice cream, will be valued at a thirty-five percent (35%) markdown from the retail price on the applicable Closing Date. Gasoline and Motor Fuels at each Location will be valued at the Company’s laid-in cost per gallon of the last delivery of each type of product received at the Location prior to the applicable Closing Date. Promptly upon receipt, the Company will provide to Purchaser paid invoices for purposes of confirming the Company’s cost. Company’s Branded Inventory will be valued at the wholesalers’ invoice cost to the Company. All other inventory of products and supplies will be valued at the Company’s cost, according to Sellers’ paid invoices therefor, except as the parties may mutually agree in writing to employ a different methodology. For purposes of the foregoing, the Company’s “cost” shall be deemed to include freight or delivery charges, if any, actually incurred by the Company. Purchaser shall have no obligation to purchase any partial packages or opened containers of merchandise or supplies; provided, however, that the parties shall deal in good faith as to packages and containers of which the contents are themselves individually packaged; and provided further, that, with respect to bulk inventory, including, without limitation, bulk chemicals used in car wash facilities at the Locations and any other items contained in storage tanks and similar containers, Purchaser shall be obligated to purchase such inventory, provided the parties are able to determine, with reasonable certainty, the value attributable to any such inventory. The Company shall provide to Purchaser within three Business Days of the Second Closing Date all information necessary to calculate the value of the Inventory pursuant to the methodology set forth in this Section 3.03, and Purchaser shall calculate and deliver to the Company the total value of the Inventory within ten (10) Business Days of the Second Closing Date. If the Company accepts such valuation or does not object to the total value of the Inventory as calculated by Purchaser within five (5) Business Days of its receipt of such calculation from Purchaser, then on the following Business Day, Purchaser shall pay to the Company, by wire transfer of immediately available funds, an amount equal to the total value of the Inventory as calculated by Purchaser. If the Company objects to the calculation of the total value of the Inventory, then Company shall notify Purchaser of such objection within five (5) Business Days of its receipt of such calculation from Purchaser, and Company and Purchaser shall seek to resolve any discrepancies; provided that, with respect to any amount not in controversy, Purchaser shall promptly pay such amount to the Company. Promptly following the resolution of such discrepancies, Purchaser shall pay to the Company the amount, as resolved. If Company and Purchaser are unable to resolve any discrepancies within 30 days of notice by Company of such objections, then any remaining disputed amounts will be determined within 30 days thereafter by a firm or individual to be mutually agreed upon by the parties whose determination will be final, binding and non-appealable. The Company and Purchaser will bear equally the fees and expenses payable to such firm or individual in connection with such determination.

Inventory Consideration. On each Closing Date, representatives of Sellers and Purchaser Prior to the Transfer Date the Seller shall take a physical count of all Inventory located at remove from each Location and the identified by Purchaser for closure, including stores nos. 5 (McCook), 7 (Holdrege), 8 (▇▇▇▇▇▇▇▇ ▇), 15 (Lincoln), 16 (York), 18 (Tecumseh), 20 (Lincoln), 24 (Central City), 31 (McCook), 49 (Hastings) and ▇▇▇▇ 78 (Lincoln) all liquor, beer, pop, chips, salted snacks, breads and cakes, milk and as much of the remaining inventory received at the Location by direct store delivery from the vendor (“DSD product”) as the vendors will take back, and all inventory that is outdated or otherwise unmerchantable, or listed in Schedule 3.03 as excluded from this transaction. The purchase price of all Inventory purchased hereunder at each Location shall be determined by a physical count to be Transferred on such Closing Datetaken as of the Transfer Date of said Location, under the joint direction of the parties hereto, at the expense of the Purchaser. Inventory which, which in the exercise of good faith, faith is determined to be outdated or otherwise not of merchantable quality or which is listed in Schedule 3.03 as excluded from the transaction herein contemplated shall be excluded and shall be Excluded Assets. The Inventory at each Location and at the ▇▇▇▇▇▇▇▇ and ▇▇▇▇ Location shall be valued, for purposes of this Agreement, as follows: Beer and Pop (Soda) will be valued at the CompanySeller’s net cost, based on the last invoice for each product delivered to the Location. Cigarettes and Tobacco Products will be valued at the CompanySeller’s net wholesale cost, based on Sellers’ Seller’s paid invoices or the wholesale supplier’s quoted price on the applicable Closing Transfer Date, as Company Seller may elect and provide suitable evidence acceptable to the Purchaser, less any manufacturer’s promotional monies (buy-down funds) attributable thereto, received or receivable by the CompanySeller. Prepared and FastCoffee used for Brewing on-Food Products site will be valued at the CompanySeller’s net cost, based on the vendor’s invoice for the last delivery of each type of product received at the Location, less any discounts and promotional allowances taken by the Company Seller with respect thereto. All Grocery-Category Product, including non-DSD beverage products, Product will be valued at a thirty-five forty percent (3540%) markdown from the retail price on the applicable Closing Transfer Date. All DSD Product exclusive of beer and pop, including but not limited to milk, breads and cakes, chips, nuts, snacks and ice cream, will be valued at a thirty-twenty- five percent (3525%) markdown from the retail price on the applicable Closing Transfer Date. Gasoline and Motor Fuels at each Location will be valued at the CompanySeller’s laid-in cost per gallon of the last delivery of each type of product received at the Location prior to the applicable Closing Transfer Date. Promptly upon receipt, the Company Seller will provide to Purchaser paid invoices for purposes of confirming the CompanySeller’s cost. Company’s Branded Inventory will be valued at the wholesalers’ invoice cost to the Company. All other inventory of products and supplies will be valued at the CompanySeller’s cost, according to Sellers’ Seller’s paid invoices therefor, except as the parties may mutually agree in writing to employ a different methodology. For purposes of the foregoing, the CompanySeller’s “cost” shall be deemed to include freight or delivery charges, if any, actually incurred by the CompanySeller. Purchaser shall have no obligation to purchase any partial packages or opened containers of merchandise or supplies; provided. However, however, that the parties shall deal in good faith as to packages and containers of which the contents are themselves individually packaged; and provided further, that, with respect to bulk inventory, including, without limitation, bulk chemicals used in car wash facilities at the Locations and any other items contained in storage tanks and similar containers, Purchaser shall be obligated to purchase such inventory, provided the parties are able to determine, with reasonable certainty, the value attributable to any such inventory. The Company shall provide to Purchaser within three Business Days of the Second Closing Date all information necessary to calculate the value of the Inventory pursuant to the methodology set forth in this Section 3.03, and Purchaser shall calculate and deliver to the Company the total value of the Inventory within ten (10) Business Days of the Second Closing Date. If the Company accepts such valuation or does not object to the total value of the Inventory as calculated by Purchaser within five (5) Business Days of its receipt of such calculation from Purchaser, then on the following Business Day, Purchaser shall pay to the Company, by wire transfer of immediately available funds, an amount equal to the total value of the Inventory as calculated by Purchaser. If the Company objects to the calculation of the total value of the Inventory, then Company shall notify Purchaser of such objection within five (5) Business Days of its receipt of such calculation from Purchaser, and Company and Purchaser shall seek to resolve any discrepancies; provided that, with respect to any amount not in controversy, Purchaser shall promptly pay such amount to the Company. Promptly following the resolution of such discrepancies, Purchaser shall pay to the Company the amount, as resolved. If Company and Purchaser are unable to resolve any discrepancies within 30 days of notice by Company of such objections, then any remaining disputed amounts will be determined within 30 days thereafter by a firm or individual to be mutually agreed upon by the parties whose determination will be final, binding and non-appealable. The Company and Purchaser will bear equally the fees and expenses payable to such firm or individual in connection with such determination.