Common use of Inventory Procedures Clause in Contracts

Inventory Procedures. The Inventory Price shall be determined by extending the physical inventory at the valuation methods set forth in Exhibit BB. At the Closing, Purchaser shall pay Sellers the sum of THREE MILLION FIVE HUNDRED THOUSAND DOLLARS ($3,500,000) on account of petroleum inventory and THREE MILLION DOLLARS ($3,000,000) on account of merchandise Inventory (the sum of such amounts, or $6,500,000, is referred to as the “Estimated Inventory Price”). On the day of the Closing or such other dates as may be mutually agreed by the parties, Purchaser and Sellers shall conduct or cause to be conducted an inventory audit or review (the “Inventory Review”) of all Inventory located on the Sites in accordance with the procedures set forth in Exhibit BB attached hereto. Purchaser and Sellers recognize that to inventory all Sites could take up to three (3) or more days and the procedure is designed to recognize this possibility. Based on the Inventory Review, Purchaser and Sellers shall compute the final Inventory Price. At the Closing, Purchaser shall wire transfer to Sellers the Estimated Inventory Price, with such amount consisting of the estimate for merchandise and the estimate for petroleum products. In the event that, upon completion of the Inventory Review, Purchaser and Sellers cannot agree on the proper Inventory Price, and related adjustment necessary due to the payment by Purchaser of the Estimated Inventory Price, Purchaser shall immediately pay Sellers by wire transfer the lower of the two amounts that Purchaser and Sellers contend to be the proper Inventory Price, after first deducting the Estimated Inventory Price payment previously made and contingent upon the lower of the two amounts being greater than the Estimated Inventory Price. If the lower of the two amounts is less than the Estimated Inventory Price, Sellers shall immediately pay Purchaser such difference in amounts by wire transfer. If Purchaser and Sellers are unable to resolve the dispute regarding the Inventory Price, the same shall be submitted to arbitration in accordance with the provisions of Article 27. Upon resolution of the dispute, whether by negotiation or arbitration, Sellers or Purchaser, as appropriate, shall immediately pay, or retain, as applicable, the appropriate amount as determined by the arbitrator or through negotiation. To the extent that Purchaser and Sellers retain third parties to conduct one or more of the Inventory Reviews, Purchaser shall pay the fees and expenses of such third parties. Purchaser and Sellers shall mutually agree to any third parties and shall mutually agree if the Inventory Review at any Site is not to be conducted by a third party.

Inventory Procedures. The parties hereto acknowledge that the Purchase Price has been based in part on the Purchased Assets including Inventory Price shall be determined by extending as of the physical inventory Effective Time which is adequate for the operation of the Business in the Ordinary Course of Business and with a value of at the valuation methods set forth in Exhibit BB. At the Closing, Purchaser shall pay Sellers the sum of THREE MILLION FIVE HUNDRED THOUSAND DOLLARS least Ten Million Dollars ($3,500,00010,000,000.00) on account of petroleum inventory and THREE MILLION DOLLARS ($3,000,000) on account of merchandise Inventory (the sum of such amounts, or $6,500,000, is referred to as the “Estimated Inventory Price”). On the day of the Closing or such other dates as may be mutually agreed by the parties, Purchaser and Sellers shall conduct or cause to be conducted an inventory audit or review (the “Inventory ReviewThreshold”) ). For purposes of all determining the value of the Inventory located on as of the Sites Effective Time (the “Inventory Value”), the Inventory included in the Purchased Assets shall be measured and valued at the Effective Time in accordance with the procedures following inventory determination and valuation procedures: (i) Beginning ten (10) days prior to the scheduled Closing Date, an independent inventory inspector (the “Inspector”) (mutually satisfactory to both the Buyer and the Sellers Representative), shall conduct a physical count of the Inventory, such physical count to be brought forward and adjusted through the close of business immediately prior to the Effective Time, using the inventory counting and recognition methodologies and practices set forth in Exhibit BB attached heretoSchedule 3.1(a)(i) (“Inventory Count”). Purchaser The costs and Sellers recognize that to inventory all Sites could take up to three (3) or more days and the procedure is designed to recognize this possibility. Based on the Inventory Review, Purchaser and Sellers shall compute the final Inventory Price. At the Closing, Purchaser shall wire transfer to Sellers the Estimated Inventory Price, with such amount consisting expenses of the estimate for merchandise Inspector shall be borne 50% by the Sellers and 50% by the estimate for petroleum productsBuyer. In connection with the event that, upon completion calculation of the Inventory ReviewValue, Purchaser the Buyer and Sellers its representatives, if requested by the Buyer, will have reasonable access to all requisite accounting and other records of Sellers, if necessary. The parties will use their respective Reasonable Efforts to cause the Inspector to complete the Inventory Count by no later than one day prior to Closing. The Inventory Count shall be completed no later than three days after the Closing. If the parties cannot agree on the proper Inventory Price, and related adjustment necessary due to the payment by Purchaser of the Estimated Inventory Price, Purchaser shall immediately pay Sellers by wire transfer the lower of the two amounts that Purchaser and Sellers contend to be the proper Inventory Price, after first deducting the Estimated Inventory Price payment previously made and contingent Value based upon the lower of Inventory Count within three (3) Business Days after the two amounts being greater than the Estimated Inventory Price. If the lower of the two amounts is less than the Estimated Inventory Price, Sellers shall immediately pay Purchaser such difference in amounts by wire transfer. If Purchaser and Sellers are unable to resolve the dispute regarding the Inventory PriceClosing, the same parties shall be submitted submit such matter to arbitration in accordance a mutually agreed upon third party for review and resolution, with the provisions of Article 27. Upon resolution of the dispute, whether by negotiation or arbitration, Sellers or Purchaser, as appropriate, shall immediately pay, or retain, as applicable, the appropriate amount as determined by the arbitrator or through negotiation. To the extent that Purchaser and Sellers retain third parties to conduct one or more of the Inventory Reviews, Purchaser shall pay the fees and expenses thereof to be borne 50% by the Sellers and 50% by the Buyer; and any determination by such party shall be final and binding upon the parties. (ii) Promptly following the determination of the Inventory Value, but in no event later than five Business Days after the Closing Date, the Buyer Parties or the Sellers, as the case may be, shall pay by wire transfer to the other Party immediately available U.S. funds in an amount equal to the excess (in the case of the Buyer Parties) or shortfall (in the case of the Sellers) of the Inventory Value as compared to the Inventory Threshold, if any. Notwithstanding the foregoing, to the extent that all or a portion of the Inventory Value is being disputed in good faith, the disputed portion shall not be payable at the time specified in the preceding sentence but instead shall become due and shall be paid within three (3) Business Days following the resolution of such third partiesdispute. Purchaser and Sellers If not paid when due, interest shall mutually agree accrue on the amount due at a rate equal to any third parties and shall mutually agree if the lesser of (a) 10% per annum or (b) the maximum rate permitted by applicable law. (iii) Inventory included in the Inventory Review at any Site is not to Threshold shall be conducted by determined in a third partymanner consistent with the presentation of Inventory on the 2007 Annual Financial Statements.

Inventory Procedures. The parties hereto acknowledge that the Purchase Price has been based in part on the Purchased Assets including Inventory Price shall be determined by extending as of the physical inventory Effective Time which is adequate for the operation of the Business in the Ordinary Course of Business and which has a value of at the valuation methods set forth in Exhibit BB. At the Closing, Purchaser shall pay Sellers the sum of THREE MILLION FIVE HUNDRED THOUSAND DOLLARS least Ten Million Dollars ($3,500,00010,000,000.00) on account of petroleum inventory and THREE MILLION DOLLARS ($3,000,000) on account of merchandise Inventory (the sum of such amounts, or $6,500,000, is referred to as the “Estimated Inventory Price”). On the day of the Closing or such other dates as may be mutually agreed by the parties, Purchaser and Sellers shall conduct or cause to be conducted an inventory audit or review (the “Inventory ReviewThreshold”) ). For purposes of all determining the value of the Inventory located on as of the Sites Effective Time (the “Inventory Value”), the Inventory included in the Purchased Assets shall be measured and valued as of the Effective Time in accordance with the procedures following inventory determination and valuation procedures: (i) On a date which is prior to the scheduled Closing Date and is mutually agreed between Buyer and the Seller’s Representative, representatives of the Buyer and Sellers shall jointly conduct a physical count of the Inventory, such physical count to be brought forward and adjusted through the close of business immediately prior to the Effective Time, using the inventory counting and recognition methodologies and practices set forth in Exhibit BB attached heretoSchedule 3.1(a)(i) (“Inventory Count”). Purchaser and The Sellers recognize acknowledge that to Buyer may have ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ observe the inventory all Sites could take up to three (3) or more days and the procedure is designed to recognize this possibility. Based on the Inventory Review, Purchaser and Sellers shall compute the final Inventory Price. At the Closing, Purchaser shall wire transfer to Sellers the Estimated Inventory Price, with such amount consisting of the estimate for merchandise and the estimate for petroleum productsprocess at Buyer’s expense. In connection with the event that, upon completion calculation of the Inventory ReviewValue, Purchaser the Buyer and Sellers its representatives, if requested by the Buyer, will have reasonable access to all requisite accounting and other records of Sellers, if necessary. The parties will use their respective Reasonable Efforts to complete the Inventory Count promptly and, in any event, prior to or within three days after the Closing. If the parties cannot agree on the proper Inventory Price, and related adjustment necessary due to the payment by Purchaser of the Estimated Inventory Price, Purchaser shall immediately pay Sellers by wire transfer the lower of the two amounts that Purchaser and Sellers contend to be the proper Inventory Price, after first deducting the Estimated Inventory Price payment previously made and contingent Value based upon the lower of Inventory Count within twenty (20) days after the two amounts being greater than the Estimated Inventory Price. If the lower of the two amounts is less than the Estimated Inventory Price, Sellers shall immediately pay Purchaser such difference in amounts by wire transfer. If Purchaser and Sellers are unable to resolve the dispute regarding the Inventory PriceClosing, the same parties shall be submitted submit such matter to arbitration in accordance a mutually agreed upon third party for review and resolution, with the provisions of Article 27. Upon resolution of the dispute, whether by negotiation or arbitration, Sellers or Purchaser, as appropriate, shall immediately pay, or retain, as applicable, the appropriate amount as determined by the arbitrator or through negotiation. To the extent that Purchaser and Sellers retain third parties to conduct one or more of the Inventory Reviews, Purchaser shall pay the fees and expenses of thereof to be borne 50% by the Sellers and 50% by the Buyer, and any determination by such third parties. Purchaser party shall be final and Sellers shall mutually agree to any third parties and shall mutually agree if binding upon the Parties. (ii) Within three (3) Business Days following the final determination of the Inventory Review Value (whether by agreement or third party appraisal) the Buyer Parties or the Sellers, as the case may be, shall pay by wire transfer to the other Party immediately available U.S. funds in an amount equal to the excess (in the case of the Buyer Parties) or shortfall (in the case of the Sellers) of the Inventory Value as compared to the Inventory Threshold, if any. If not paid when due, interest shall accrue on the amount due at any Site is not a rate equal to the lesser of (a) 10% per annum or (b) the maximum rate permitted by applicable law. (iii) Inventory included in the Inventory Threshold shall be conducted by determined in a third partymanner consistent with the presentation of Inventory on the 2007 Annual Financial Statements.”