Common use of Inventory Taking Clause in Contracts

Inventory Taking. The Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail physical inventory of the Merchandise located in the Stores (the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 (the “Inventory Taking Instructions”). The Merchant and the Agent may each 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, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The Merchant and (a) On the Agent shall use best efforts to cause to be taken day immediately preceding the Applicable Closing Date, a SKU and retail "wall-to-wall" physical inventory of the Merchandise located Inventory to be purchased on such date will be conducted at the Warehouse Facilities and, if applicable, at the Cheswick Facility, by Seller and by Buyer jointly at their respective cost and expense. Such inventory will be valued at 63.3% of actual cost of Inventory, as reflected in Seller's books and records (as previously reviewed by Buyer). Procedures for the Stores (the “Inventory Taking”), subject to the availability taking and calculation of the Inventory Taking Service (defined below) which Inventory Taking are set forth in Exhibit "D" attached hereto and made a part hereof. The parties shall be completed in all of agree upon and sign the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date report of the Inventory Taking ("Inventory Report") following the completion of the physical inventory and the resolution of any disputes. In order to facilitate the taking of the "wall-to-wall" physical inventory: (i) all operations of Seller at the facility at which the Inventory to be purchased is located shall cease during the taking of such physical inventory; and (ii) no such Inventory shall be shipped and no goods or materials shall be received during the taking of such physical inventory. Representatives of Buyer and Seller shall be entitled to participate at their respective cost and expense in the observation of the physical inventory. (b) In the event of a dispute between the parties as to the accuracy of any items contained in the Inventory Report, then the Buyer shall pay the undisputed amount to the Seller on the Applicable Closing Date and Seller and Buyer shall negotiate in order to agree upon the proper valuation. If they shall fail to come to an agreement with respect thereto within fifteen (15) days after such negotiation shall commence, then the amount of the Inventory valuation shall be referred for determination to the Cleveland, Ohio offices of Deloitte & Touche (the "Dispute Accountants"), who shall be instructed, with respect to each Store being item in dispute, to choose between the “Inventory Date” for each such Storeposition taken on that issue by Buyer and the position taken on that issue by Seller (as opposed to adopting either a compromise position or any position not taken by one or the other of Buyer and Seller). The Merchant Dispute Accountants shall have no right, authority or discretion to employ any accounting standard or principles or valuation method except for those reflected in "Exhibit D". The determination by the Dispute Accountants shall be final, binding, and conclusive on the Agent parties. The fees and disbursements of the Dispute Accountants shall jointly employ a mutually acceptable independent inventory taking service be allocated between Buyer and Seller so that the dollar amount of such fees and disbursements borne by each of them is in direct proportion to that portion of the dollar amount of the items in dispute (i.e.: the “Inventory Taking Service”aggregate dollar spread between the positions taken by each of Buyer and Seller) with respect to which the Dispute Accountants find against each of Buyer and Seller, respectively. Nothing herein contained shall be construed (i) to conduct authorize or permit the Inventory Taking. The Inventory Taking shall be conducted Dispute Accountants to arbitrate or determine any question or matter whatsoever under or in accordance connection with this Agreement except the procedures and instructions attached hereto as Exhibit 5.4 valuation of inventory, or (ii) to require the “Inventory Taking Instructions”). The Merchant and the Agent may each have representatives present during the Inventory Taking, and shall each have the right Dispute Accountants to review and verify the listing and tabulation follow rules of the Inventory Taking Service, provided that senior representatives American Arbitration Association or of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores any other body in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of making such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for businessdetermination.

Inventory Taking. The Merchant and (a) Subject to the Agent shall provisions of this paragraph, the parties have agreed to use best efforts the current book value of inventory as of the Sale Commencement Date, to cause to be taken a SKU and retail physical inventory determine the aggregate Cost Value of the Merchandise located in the Stores (on the “Inventory Taking”)Sale Commencement Date in accordance with this Agreement. In order to test the validity of the aggregate Cost Value of the Merchandise as reflected on Merchant’s current books and records, subject to the availability of the Inventory Taking Service Service, on or within twenty one (defined below21) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,”), Merchant and Agent shall cause to be taken an SKU physical inventory (the “Inventory Taking”) of the Merchandise located in 100 of the Stores, each with a representative sampling of Stores located in each district (each a “Test Store” and collectively, the “Test Stores”), which Test Stores shall be jointly selected by Merchant and Agent. (The date of the Inventory Taking at each Test Store being shall be referred to as the “Inventory Date” for each such Test Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking (and, if applicable, the Additional Inventory Taking. , as defined below) in accordance with procedures set forth on Exhibit 5.1 annexed hereto. (b) The results of the Inventory Taking at the Test Stores and the Additional Test Stores (as defined below), if any (the “Test Store Results”) shall be conducted used to determine any adjustment as may be required to the calculation of the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date, as follows: (i) for purposes of calculating the aggregate Cost Value of the Merchandise at the Test Stores and Additional Test Stores, if any (collectively, the “Inventoried Stores”), the actual Test Store Results for the Inventoried Stores, as adjusted by Gross Rings for the period between the Sale Commencement Date and the applicable Inventory Date (the “Gross Rings Period”); (ii) for purposes of calculating the aggregate Cost Value of the Merchandise at the Stores that do not constitute Inventoried Stores (the “Non-Inventoried Stores”), the actual Test Store Results at the Inventoried Stores, shall be compared to the “roll-forward” book value of the Merchandise at the Inventoried Stores, as of the Sale Commencement Date (i.e Gross Rings and receipts at each of the Stores during the Gross Rings Period) (the “Adjusted Book Inventory”), and an average variance shall be calculated (the “Variance”), and the Variance shall be applied to adjust Adjusted Book Inventory of the Merchandise located at the Non-Inventoried Stores; provided however; for the purposes of calculating the Variance, the Inventoried Stores having the results from the three Stores with highest and three Stores with the lowest variance percentage shall be excluded. In the event that the initial Variance at the Inventoried Stores is greater than six percent (6%) of the current book value of the Merchandise in the Inventoried Stores, then either Merchant or Agent shall have the right to request an Inventory Taking at additional Stores (the “Additional Test Stores”), to be mutually and reasonably agreed upon by the parties (the “Additional Inventory Taking”), to establish whether an adjustment to the Variance is required, with the costs and fees associated with the Additional Inventory Taking, to be paid by the party requesting such Additional Inventory Taking (c) The Agent and Merchant agree that they will, and agree to cause their respective representatives to, cooperate and assist in the preparation and the calculation of the aggregate Cost Value of the Merchandise included in the Sale, including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (d) With respect to Distribution Center Merchandise, such Distribution Center Merchandise shall be counted and reconciled within five Store business days after receipt of such goods in the Stores in accordance with the procedures and instructions attached hereto as Exhibit 5.4 set forth herein (the “Inventory Taking InstructionsReconciled DC Merchandise Receipts”), and absent prior notification and agreement of Merchant, failure to report any variance between the received shipment from the respective shipping documents (each a “Shipping Variance”), within such five Store business day period shall, result in such receipts being automatically confirmed received consistent with the applicable shipping documents. The Merchant shall have five Distribution Center business days to verify a timely issued Shipping Variance (each a “Shipping Variance Response”), and absent prior notification and agreement of Agent, failure to respond to an asserted Shipping Variance within such five Distribution Center business day period shall result in such Shipping Variance being deemed valid. If Merchant timely issues a Shipping Variance Response that disputes the asserted Shipping Variance, Merchant and the Agent may each 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, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct verify and resolve such dispute. Unless Merchant and Agent otherwise agree, and subject to both Merchant’s and Agent’s compliance with their obligations under Section 5.5 hereof, to the Inventory Taking commencing extent that there is any Distribution Center Merchandise remaining in the Distribution Centers at a time that would minimize the number end of hours that the Distribution Center Occupancy Period provided for in Section 5.5 hereof (the “Remaining DC Merchandise”), such locations would Remaining DC Merchandise shall be closed for businessjointly counted by Merchant and Agent (Remaining DC Merchandise Count”) and included as Merchandise. Agent shall have ten (10) days after the reconciliation of the Remaining DC Merchandise Count to remove such Remaining DC Merchandise from the Distribution Centers, at Agent’s sole cost (including any Distribution Center Expenses incurred after the expiration of the Distribution Center Occupancy Period), and any Remaining DC Merchandise not timely removed shall be deemed abandoned by Agent and Merchant shall be free to dispose of such abandoned Merchandise as it deems appropriate.

Inventory Taking. The Merchant As soon as practicable after the Sale ---------------- Commencement Date, the Purchaser and the Agent Debtors shall use best efforts to cause to be taken jointly take a retail and SKU and retail physical inventory of the Merchandise Saleable Inventory located at each Store and Warehouse in accordance with the Stores inventory procedures set forth on Exhibit 2.4 hereto to ----------- obtain the cost of the Saleable Inventory located thereat (the “"Inventory --------- Taking”), subject to the availability of the Inventory Taking Service ") (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store or Warehouse being the “"Inventory Date” " for each such StoreStore or Warehouse). The Merchant Purchaser and the Agent Debtors shall -------------- jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Purchaser and the Debtors shall each be responsible for 50% of the costs and fees of such inventory taking service. Except as provided in the immediately preceding sentence, the Purchaser and the Debtors shall each bear their respective costs and expenses relative to the Inventory Taking. Once the Inventory Taking shall be conducted commences in accordance with any Store or Warehouse and until the procedures and instructions attached hereto as Exhibit 5.4 (completion of the “Inventory Taking Instructions”)in such Store or Warehouse, neither Debtors nor Purchaser shall enter such Store or Warehouse without each having a representative present; provided, however, that until the completion of the Inventory Taking, Debtors and Purchaser shall each be entitled to enter any Store or Warehouse at any time after providing notice to the other party in the event of an emergency at such Store or Warehouse. Following the completion of the Inventory Taking in each Store or Warehouse, Debtors shall not enter any Store or Warehouse, except (i) during ordinary Store/Warehouse hours upon notice to the managers of such Store or Warehouse, or (ii) after providing notice to Purchaser in the event of an emergency at such Store or Warehouse. The Merchant Purchaser and the Agent may Debtors shall each 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, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Storesinventory taking service. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to During the Inventory Taking, Purchaser and the Debtors shall work in good faith to agree on the Defective Merchandise Amount. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent parties agree that during the conduct of the Inventory Taking in at each of the Stores, the applicable Stores Store such Store shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The (a) Merchant and the Agent shall use best efforts to cause to be taken (i) a SKU Retail Price physical inventory, and retail physical (ii) an "SKU" inventory of the Merchandise located in the Stores (the “Inventory Taking”), subject to "INVENTORY TAKING") commencing at the availability close of the Inventory Taking Service business at four (defined below4) which Inventory Taking shall be completed in all of the Stores selected by Agent in its sole discretion, on a date mutually agreed upon by Agent and Merchant, but in no event later than 10 days after the Sale Commencement Date June 18, 1997 (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” "INVENTORY DATE" for each such Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking Agent shall be conducted responsible for 50% of the costs and fees of the inventory taking service as an Expense hereunder, and the balance of such costs and fees shall be paid by Merchant. Except as provided in accordance with the procedures and instructions attached hereto as Exhibit 5.4 (the “Inventory Taking Instructions”). The immediately preceding sentence, Merchant and Agent shall bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may shall each 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, provided that senior representatives of the inventory taking service. Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in at each of the Stores, the applicable Stores Store such Store shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and procedures to be used in the Agent agree to cooperate with each other to conduct of the Inventory Taking commencing at a time that would minimize and its verifications are set forth on EXHIBIT 5.1 attached hereto. In order to facilitate the number Inventory Taking, Merchant agrees to make its SKU data files and related computer hardware and software available to Agent and the inventory taking service prior to the Inventory Date. (b) Once the listing and tabulation of hours that the inventory taking service is complete, and reviewed and verified by Agent and Merchant, the actual results of the Inventory Taking shall be compared to the book inventory of the said (4) Stores on the Inventory Date, and the actual results of the Inventory Taking shall control. Any variances as to quantity, by category/mix of Merchandise, from the actual Inventory Taking to the book inventory on the Inventory Date, shall be applied to the book inventory on the Inventory Date of the remaining five (5) Stores, and such locations would adjusted book inventory (e.g. applying such variances) shall be closed for businessthe controlling inventory of the Merchandise in these five (5) remaining Stores. Additionally, Retail Prices in the four (4) Stores where there is an Inventory Taking shall control over any different retail prices in the five (5) remaining Stores as to the same items, if any variances in Retail Price exist.

Inventory Taking. The Commencing on the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail physical inventory of the Merchandise located in the Stores (the “"Inventory Taking”"), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 five (5) days after the Sale Commencement Date (the “"Inventory Completion Date,” ", and the date of the Inventory Taking at each Store being the “"Inventory Date” " for each such Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “"Inventory Taking Service”") to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 5.1 (the “"Inventory Taking Instructions”"). As an Expense, Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service. The balance of such fees and expenses shall be paid by Merchant. Except as provided Section 4.1(n) and the immediately preceding sentence, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may shall each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Agent shall provide Merchant and with a budget concerning the Agent agree to cooperate with each other to conduct cost of the Inventory Taking commencing at a time that would minimize prior to the number of hours that such locations would be closed for businessSale Commencement Date.

Inventory Taking. The Merchant Commencing as of the Closing Date, Buyer and the Agent Sellers shall use best efforts to cause to be taken a SKU Cost Value and retail Retail Value physical inventory of the Merchandise located in the Stores (the “Inventory Taking”), subject to the availability ) of the Inventory Taking Service (defined below) located in the Acquired Stores, which Inventory Taking shall be completed in all within fifteen (15) days of the Stores no later than 10 days after the Sale Commencement Closing Date (the “Inventory Completion Date,” ”, and the date of the Inventory Taking at each Store Inventoried Location being the “Inventory Date” for each such Store”). The Merchant Sellers and the Agent Buyer shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Prior to the Closing Date, Buyer and Seller shall agree upon the appropriate Inventory Taking shall be conducted in accordance with Schedule. Buyer and Seller have agreed upon the procedures and instructions for the conduct of the Inventory Taking, which are attached hereto as Exhibit 5.4 B (the “Inventory Taking Instructions”). The Merchant Buyer and Sellers shall each be responsible for 50% of the Agent may fees and expenses of the Inventory Taking Service. Except as provided in the immediately preceding sentence, Buyer and Sellers shall each bear their respective costs and expenses relative to the Inventory Taking. Buyer and Sellers shall each 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, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The (a) Commencing on the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail level physical inventory of the Merchandise located in the Closing Stores (collectively, the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all each of the Closing Stores and the Distribution Centers no later than 10 fifteen (15) days after the Sale Commencement Date (the “Inventory Completion Date,” ”, and the date of the Inventory Taking at each Closing Store being the “Inventory Date” for each such Closing Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking, or if Merchant and Agent 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 attached hereto to be mutually agreed by Merchant and Agent and made a part of this Agreement as Exhibit 5.4 5.1(a) (the “Inventory Taking Instructions”). As an Expense, Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service, if such service is utilized. The balance of such fees and expenses, if applicable, shall be paid by Merchant. In the event that no third party Inventory Taking Service is utilized, then each of Merchant and Agent shall bear their respective expenses incurred in the Inventory Taking. Except as provided in the immediately preceding sentence as concerns allocation of the costs of the Inventory Taking Service, Merchant and Agent may shall each bear their respective costs and expenses relative to the Inventory Taking. Merchant, Agent and Lender 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the Closing Stores, the applicable Stores Closing Store shall be closed to the public and no sales or other transactions shall be conductedconducted until the Inventory Taking has been completed, as agreed by Merchant and Agent. Merchant and Agent further agree that until the Inventory Taking in each particular Closing Store is completed, Agent shall not (i) transfer any Merchandise to or from that Closing Store, (ii) deliver any Additional Agent Merchandise to such Closing Store, and/or (iii) move Merchandise within or about the Closing Stores and/or (iv) remove any Merchant hang tags, price tickets, or inventory control tags affixed to any Merchandise. The Inventory Taking, including, but not limited to, the determination of the aggregate Cost Value of the Merchandise, shall be reconciled by Merchant and Agent within ten (10) days after its completion, and the Agent agree and Merchant shall use their reasonable best efforts to cooperate accomplish such reconciliation within such ten (10) day period; provided, further, that the Final Inventory Report shall be completed not later than thirty (30) days after the Sale Commencement Date. In the event there is any dispute with each other respect to conduct the reconciliation of the aggregate Cost Value of the Merchandise following completion of the Inventory Taking commencing Taking, then any such dispute shall be resolved in the manner and at a time that would minimize the number of hours that such locations would be closed for businesstimes set forth in Section 8.7(b)(ii) hereof.

Inventory Taking. The Merchant and Subject to the Agent shall provisions of this paragraph, the parties have agreed to use best efforts the current book value of inventory as of the Sale Commencement Date, to cause to be taken a SKU and retail physical inventory determine the aggregate Retail Value of the Merchandise located in the Stores (on the “Inventory Taking”)Sale Commencement Date in accordance with this Agreement. In order to test the validity of the aggregate Retail Value of the Merchandise as reflected on Merchant’s current books and records, subject to the availability of the Inventory Taking Service (defined below) which and the agreement of Merchant and Agent as to the schedule of the Inventory Taking shall be completed in all of at the Stores no later than 10 Test Stores, on or within ten (10) business days after the Sale Commencement Date (the “Inventory Completion Date,”), Merchant and Agent shall cause to be taken an SKU physical inventory and retail inventory (the “Inventory Taking”) of the Merchandise located in 30 of the Stores, each with a representative sampling of Merchandise located in each district (each a “Test Store” and collectively, the “Test Stores”), which Test Stores shall be jointly selected by Merchant and Agent. (The date of the Inventory Taking at each Test Store being shall be referred to as the “Inventory Date” for each such Test Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking (and, if applicable, the Additional Inventory Taking. The Inventory Taking shall be conducted , as defined below) in accordance with procedures set forth on Exhibit 5.1 annexed hereto. Agent shall be responsible as a Sale Expense hereunder for fifty percent (50%) of the procedures fees and instructions attached hereto as Exhibit 5.4 (expenses of the “Inventory Taking Instructions”)Service. The Except for the Inventory Taking costs payable to the Inventory Taking Service, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent further agree that until the Inventory Taking in each particular Store is completed, neither Merchant nor Agent shall: (i) transfer any Merchandise to or from that Store to other Stores, (ii) move Merchandise within or about the Store so as to make any such items unavailable for counting as part of the Inventory Taking, and/or (iii) remove any hang tags, price tickets or inventory control tags affixed to any Merchandise. Inventory may continue to be shipped from the Distribution Center to the Stores prior to the Inventory Taking. Merchant and Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The (a) As soon as practicable following the Sale Commencement Date, but in no event later than ten (10) days after the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU stock-keeping unit (“SKU”) and retail physical inventory of the Merchandise located in taking at the Stores (the “Inventory Taking”), subject provided, however, that with respect to the availability Current Stores only, the parties may (in their respective sole discretion) elect by mutual agreement prior to the Sale Commencement Date to count only a smaller sample of the Inventory Taking Service (defined below) which Current Stores and agree on customary procedures to extrapolate those findings to the remaining Current Stores. The Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The conducted by Merchant and the Agent shall jointly employ a mutually acceptable independent only without using any third party inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Takingservice. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 3.5(a) (the “Inventory Taking Instructions”). The Merchant and the Agent may each 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, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for fifty percent (50% %) of the fees payroll and expenses of benefits, subject to the Benefits Cap, for Retained Employees used during the Inventory Taking Service as an Expense hereunder hereunder; and Merchant shall pay the remaining fifty percent (50%) of the payroll and benefits for Retained Employees used during the Inventory Taking. Except for the Inventory Taking costs provided for in the two preceding sentences, Merchant, Agent and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent Secured Lenders shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shallMerchant, in any event, be reconciled within seven (7) days after its completion Agent (and the Agent Secured Lenders in their discretion) shall each have representatives present during the Inventory Taking and each shall review and verify the listing and tabulation of the Inventory Taking. Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that agrees that, during the conduct of the Inventory Taking in each of the Stores, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conducted. The Merchant and the Agent further agree that until the Inventory Taking in each particular Store is completed, neither Merchant nor the Agent shall: (i) other than with respect to sales of Merchandise in the ordinary course as part of the Sale at the Stores, transfer any Merchandise to or from that Store, (ii) move Merchandise within or about the Stores, so as to make any such items unavailable for counting as part of the Inventory Taking, and/or (iii) remove any hang tags, price tickets or inventory control tags affixed to any Merchandise. Merchant and Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business. The Agent and Merchant agree that they will, and agree to cause their respective representatives to, cooperate and assist in the preparation and the calculation of the aggregate Cost Value of the Merchandise included in the Sale, including, without limitation, making available, to the extent necessary books, records, work papers and personnel. (b) DC Merchandise delivered to the Stores after the Inventory Taking at such location shall be counted and reconciled within two (2) business days after receipt of such goods at the subject Stores, in accordance with the procedures to be agreed upon by Merchant and Agent prior to the Sale Commencement Date. Failure by Agent to report any variance between the received shipment and the applicable shipping documents (each a “Shipping Variance”) within such two (2) business day period shall, absent manifest error, result in such receipts being automatically confirmed as received, consistent with the applicable shipping documents. Merchant shall have two (2) business days to verify a timely reported Shipping Variance (each a “Shipping Variance Response”); failure to respond to an asserted Shipping Variance within such two (2) business day period shall result in such Shipping Variance being deemed valid; provided however for the purposes of this Section 3.5(b), Saturdays, Sundays and legal holidays do not count as business days even if the receiving Store is open for business. If Merchant timely issues a Shipping Variance Response that disputes the asserted Shipping Variance, Merchant and Agent shall cooperate with each other to verify and resolve such dispute.

Inventory Taking. The Merchant and (a) Subject to the provisions of this paragraph, the parties have agreed to use the average landed cost of inventory as reflected in the master inventory file(s) provided to Agent shall use best efforts on [ ], 2011 (the “Perpetual Inventory File”) to cause to be taken a SKU and retail physical inventory determine the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date and the Distribution Center Inventory (to the “Inventory Taking”extent included in the Sale). In order to test the validity of the aggregate Cost Value of the Merchandise as reflected on Merchant’s current books and records, subject to the availability of the Inventory Taking Service Service, on or within ten (defined below10) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” ”), Merchant and Agent shall cause to be taken an SKU and Retail Price physical inventory (the “Inventory Taking”) of the Merchandise located in the Stores and the Distribution Center Inventory (to the extent included in the Sale). (The date of the Inventory Taking at each Store being shall be referred to as the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a RGIS, LLC or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) ), in consultation with GECC, to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures set forth on Exhibit 5.1 annexed hereto. Merchant, Agent, and instructions attached hereto as Exhibit 5.4 (the “Inventory Taking Instructions”). The Merchant and the Agent may at its election, GECC, shall each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. . (b) The Merchant and the Agent agree to cooperate with each other to conduct results of the Inventory Taking commencing at the Stores (the “Store Results”) shall be used to determine any adjustment as may be required to the calculation of the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date, as follows: for purposes of calculating the aggregate Cost Value of the Merchandise at the Stores (collectively, the “Inventoried Stores”), the actual Store Results for the Inventoried Stores, as adjusted by Gross Rings for the period between the Sale Commencement Date and the applicable Inventory Date (the “Gross Rings Period”). (c) The Agent and ▇▇▇▇▇▇▇▇ agree that they will, and agree to cause their respective representatives to, cooperate and assist in the preparation and the calculation of the aggregate Cost Value of the Merchandise included in the Sale, including, without limitation, making available to the extent necessary, books, records, work papers and personnel. (d) In the event that the Sale commences at any Store prior to the completion of the Inventory Taking at such Store, then, for the period from the Sale Commencement Date for such Store until the Inventory Date for such Store, Agent and Merchant shall jointly keep (i) a time strict count of gross register receipts less applicable Sales Taxes but excluding any prevailing discounts (“Gross Rings”), and (ii) cash reports of sales within such Store. Agent and Merchant shall keep a strict count of register receipts and reports to determine the actual Cost Value and Retail Price of the Merchandise sold by SKU and the markdown, if any, granted by the Agent. All such records and reports shall be made available to Agent and Merchant during regular business hours upon reasonable notice. Any Merchandise included in the Sale using the Gross Rings shall be included in Merchandise using the average landed cost of such Merchandise as set forth in the Perpetual Inventory File. Agent shall pay that would minimize portion of the number Guaranteed Amount calculated on the Gross Rings basis to account for shrinkage on the basis of hours that such locations would be closed for business103% of the aggregate Cost Value of the Merchandise (without taking into account any of Agent’s point of sale discounts or point of sale markdowns) sold during the Gross Rings period.

Inventory Taking. The (a) To determine the aggregate Cost Value of the Merchandise located in the Stores, commencing on the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU level and retail Retail Price level physical inventory of the Merchandise located in the Stores (the “Stores, which Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking Service, shall be completed in all each of the Stores no later than 10 twenty-one (21) days after the Sale Commencement Date (the “Inventory Completion Date,” ”, and the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a RGIS and/or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) in consultation with GECC to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as set forth in Exhibit 5.4 5.1(a) (the “Inventory Taking Instructions”). The Merchant Merchant, Agent, and the Agent may at its election, GECC, shall each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business. (b) With respect to Distribution Center Inventory and Return to Vendor Inventory that is allocated to be sent to the Stores in accordance with the Pre-Sale Allocation, such Distribution Center Inventory and Return to Vendor Inventory shall be counted as such inventory leaves the Distrubution Centers in accordance with the procedures to be mutually agreed to by Merchant and Agent, which procedures shall determine the aggregate Cost Value of such inventory. (c) The Agent and Merchant agree that they will, and agree to cause their respective representatives to, cooperate and assist in the preparation and the calculation of the aggregate Cost Value of the Merchandise included in the Sale, including, without limitation, making available to the extent necessary, books, records, work papers and personnel. (d) In the event that the Sale commences at any Store prior to the completion of the Inventory Taking at such Store, then, for the period from the Sale Commencement Date for such Store until the Inventory Date for such Store, Agent and Merchant shall jointly keep (i) a strict count of gross register receipts less applicable Sales Taxes but excluding any prevailing discounts (“Gross Rings”), and (ii) cash reports of sales within such Store. Agent and Merchant shall keep a strict count of register receipts and reports to determine the actual Cost Value and Retail Price of the Merchandise sold by SKU and the markdown, if any, granted by the Agent. All such records and reports shall be made available to Agent and Merchant during regular business hours upon reasonable notice. Any Merchandise included in the Sale using the Gross Rings shall be included in Merchandise using the average landed cost of such Merchandise as set forth in the Perpetual Inventory File. Agent shall pay that portion of the Guaranteed Amount calculated on the Gross Rings basis to account for shrinkage on the basis of 103% of the aggregate Cost Value of the Merchandise (without taking into account any of Agent’s point of sale discounts or point of sale markdowns) sold during the Gross Rings period.

Inventory Taking. (a) The Merchant Vendor and the Agent Purchaser shall use best efforts to cause to be taken a SKU and retail physical an “SKU” inventory of the Merchandise located in the Stores (the “Inventory Taking”), subject to the availability of ) on the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant Vendor and the Agent Purchaser shall jointly employ a RGIS Inventory Service, Western Inventory Service or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking costs and fees of the inventory taking service shall be conducted in accordance with shared equally by the procedures and instructions attached hereto as Exhibit 5.4 (the “Inventory Taking Instructions”). The Merchant Vendor and the Agent Purchaser. Except as provided in the immediately preceding sentence, Vendor and Purchaser shall bear their respective costs and expenses relative to the Inventory Taking. Vendor and Purchaser shall each be entitled to designate a select number of Store locations where representatives may each have representatives be present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Serviceinventory taking service. Unless otherwise agreed by the Parties in writing, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in at each of the StoresStore, the applicable Stores such Store shall be closed to the public and no sales or other transactions shall be conductedconducted therefrom. The Merchant and procedures to be used in the Agent agree to cooperate with each other to conduct of the Inventory Taking commencing and its verification are set forth on Schedule 3.3 to this Agreement. (b) At no time will the Vendor have increased the price of Merchandise in its stock ledger. During the week of October 23, 2000, the Vendor will update its pricing for Merchandise in its Braemar division in its stock ledger to reflect the lowest selling price up to and including the Effective Date for each SKU of Merchandise. The Purchaser shall have the right to audit and review for accuracy and reasonableness the updated stock ledger. In order to facilitate the review, the Vendor agrees to make its SKU data files, including cost, retail, UPC to SKU cross-reference, historical marketing, pricing and promotion policies, and merchandising rollup data, and related computer hardware and software available to Purchaser. (c) Based on the physical count results of the Inventory Taking rolled forward to the Effective Date, the Merchandise will be included on the Effective Date Balance Sheet in accordance with generally accepted accounting principles, including a ▇▇▇▇-down reserve for the Merchandise of the Vendor’s Thrifty’s division in an amount agreed to by the Parties (if the Parties cannot so agree, the amount shall be determined in accordance with the procedures set out in Section 3.6, mutatis mutandis) and no ▇▇▇▇ down reserve for the Merchandise of the Vendor’s Braemar division, and making appropriate provisions for (whether or not in accordance with generally accepted accounting principles): (A) Damaged Merchandise, which is valued at zero; (B) RTV Merchandise, which is valued at zero, unless the parties are able to agree on an estimated realizable value based on the amount reasonably expected to be paid by the applicable supplier in respect thereof; and (C) including a time that would minimize shrink reserve for the number of hours that such locations would be closed for businessinterim period between the actual physical counts in the Inventory Taking and the Effective Date equal to the shrink percentage resulting from the Inventory Taking.

Inventory Taking. The Merchant and (a) Subject to the Agent shall provisions of this paragraph, the parties have agreed to use best efforts the current book value of inventory as of the Sale Commencement Date, to cause to be taken a SKU and retail physical inventory determine the aggregate Cost Value of the Merchandise located in the Stores (on the “Inventory Taking”), subject Sale Commencement Date in accordance with this Agreement. In order to test the availability validity of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all aggregate Cost Value of the Stores no later than 10 Merchandise as reflected on Merchant’s current books and records, on or within five (5) days after the Sale Commencement Date (the “Inventory Completion Date,”), Merchant and Agent shall cause to be taken an SKU physical inventory (the “Inventory Taking”) of the Merchandise located in fifty percent (50%) of the Stores (and 50% of the Additional Stores, to the extent Merchant exercises the Additional Stores Inclusion Option, each with a representative sampling of stores located in each district (each a “Test Store” and collectively, the “Test Stores”), which Test Stores shall be jointly selected by Merchant and Agent. (The date of the Inventory Taking at each Test Store being shall be referred to as the “Inventory Date” for each such Test Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking (and, if applicable, the Additional Inventory Taking. The Inventory Taking shall be conducted , as defined below) in accordance with the procedures and instructions attached hereto as set forth on Exhibit 5.4 5.1 annexed hereto. (the “Inventory Taking Instructions”). b) The Merchant and the Agent may each have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation results of the Inventory Taking Service, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Test Stores and the Additional Test Stores, if any (the “Test Store Results”) shall be used to determine any adjustment as may be required to the calculation of the aggregate Cost Value of the Merchandise located in order to establish the standards Stores on the Sale Commencement Date, as follows: (i) for purposes of calculating the aggregate Cost Value of the Merchandise at the Test Stores and Additional Test Stores, if any (collectively, the “Inventoried Stores”), the actual Test Store Results for the Inventoried Stores, as adjusted by Gross Rings for the period between the Sale Commencement Date and the applicable Inventory Taking in Date (the remaining “Gross Rings Period”); (ii) for purposes of calculating the aggregate Cost Value of the Merchandise at the Stores that do not constitute Inventoried Stores (the “Non-Inventoried Stores. The Agent ”), the actual Test Store Results at the Inventoried Stores, shall be responsible for 50% compared to the “roll-forward” book value of the fees and expenses Merchandise at the Inventoried Stores, as of the Inventory Taking Service as an Expense hereunder Sale Commencement Date (i.e Gross Rings and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in receipts at each of the Stores during the Gross Rings Period) (the “Adjusted Book Inventory”), and an average variance shall be calculated (the “Variance”), and the Variance shall be applied to adjust Adjusted Book Inventory of the Merchandise located at the Non-Inventoried Stores; provided however; for the purposes of calculating the Variance, the Inventoried Stores having the results from the three Stores with highest and three Stores with the lowest variance percentage shall be excluded. In the event that the initial Variance at the Inventoried Stores is greater than six percent (6%) of the current book value of the Merchandise in the Inventoried Stores, then either Merchant or Agent shall have the applicable right to request an Inventory Taking at additional Stores shall (the “Additional Test Stores”, to be closed mutually and reasonably agreed upon by the parties (the “Additional Inventory Taking”), to establish whether an adjustment to the public Variance is required, with the costs and no sales or other transactions shall fees associated with the Additional Inventory Taking, to be conducted. paid by the party requesting such Additional Inventory Taking (c) The Agent and Merchant agree that they will, and agree to cause their respective representatives to, cooperate and assist in the preparation and the Agent agree calculation of the Aggregate Cost Value of the Merchandise included in the Sale, including, without limitation, the making available to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number extent necessary of hours that such locations would be closed for businessbooks, records, work papers and personnel.

Inventory Taking. The As soon as practicable following the Sale Commencement Date, but in no event later than ( ) days after the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a UPC/SKU and retail physical inventory of the Merchandise located in the Stores taking (the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 5.1(a)(i) (the “Inventory Taking Instructions”). The Agent shall be responsible for fifty percent (50%) of the fees and expenses of the Inventory Taking Service, plus 100% of the payroll and benefits, subject to the Benefits Cap, for Retained Employees used during the Inventory Taking as an Expense hereunder and Merchant shall pay the remaining fifty percent (50%) of the fees and expenses of the Inventory Taking Service. Except for the Inventory Taking costs payable to the Inventory Taking Service, Merchant and Agent shall each bear its respective costs and expenses relative to the Inventory Taking. Merchant, Agent and the Lender may each have representatives present during the Inventory Taking, Taking and each shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. Merchant agrees that, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Closing Stores, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conducted. The Merchant and the Agent further agree that until the Inventory Taking in each particular Store is completed, neither Merchant nor the Agent shall: (i) transfer any Merchandise to or from that Store, (ii) move Merchandise within or about the Closing Stores, and/or (iii) remove any hang tags, price tickets, or inventory control tags affixed to any Merchandise. Merchant and Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business. On a weekly basis, as part of the Weekly Sale Reconciliations, Merchant and Agent shall count and reconcile all shipments and receipts of Distribution Center Merchandise and On-Order Merchandise in the Closing Stores in accordance with the procedures to be agreed upon between Merchant and Agent prior to the Sale Commencement Date; provided, however, that the aggregate Cost Value of such Merchandise shall be included for purposes of calculating the Guaranteed Amount.

Inventory Taking. The Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail "Retail Price" physical inventory of the Merchandise located in the Stores (the “"Inventory Taking”"), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores pursuant to a schedule mutually agreed upon between Merchant and Agent, but in no later than 10 ten (10) days after the Sale Commencement Date (the “"Inventory Completion Date,” "), and the date of the Inventory Taking at each Store being the “"Inventory Date” " for each such Store). The Merchant and the Agent shall jointly employ a RGIS or another mutually acceptable independent inventory taking service (the “"Inventory Taking Service”") to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 3.4, including a requirement that senior representatives of Merchant and Agent shall be personally present at the Inventory Taking at the first Stores as mutually agreed to by the Agent and Merchant in order to establish the standards for the Inventory Taking in the remaining Stores (the “"Inventory Taking Instructions”"). The Agent shall be responsible for fifty percent (50%) of the fees and expenses of the Inventory Taking Service. Except for the Inventory Taking costs payable to RGIS or other third party, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and the Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The As soon as practicable following the Sale Commencement Date, but in no event later than seven (7) days after the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail physical inventory of the Merchandise located in taking at the Stores (the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 to be agreed upon by Agent and Merchant (the “Inventory Taking Instructions”). The Agent shall be responsible for fifty percent (50%) of the fees and expenses of the Inventory Taking Service plus 50% of the payroll and benefits subject to the Benefits Cap for Retained Employees used during the Inventory Taking as an Expense hereunder and Merchant shall pay the remaining fifty percent (50%) of the fees and expenses of the Inventory Taking Service and the balance of the payroll and benefits for Retained Employees used during the Inventory Taking. Except for the Inventory Taking costs payable to the Inventory Taking Service, Merchant and Agent shall each bear its respective costs and expenses relative to the Inventory Taking. Merchant and Agent may each have representatives present during the Inventory Taking, Taking and each shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. Merchant agrees that, provided that senior representatives of the Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree that during the conduct of the Inventory Taking in each of the Stores, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conducted. The Merchant and Agent further agree that until the Inventory Taking in each particular Store is completed, neither Merchant nor Agent shall: (i) other than with respect to sales of Merchandise in the ordinary course as part of the Sale at the Stores, transfer any Merchandise to or from that Store, (ii) move Merchandise within or about the Stores so as to make any such items unavailable for counting as part of the Inventory Taking, and/or (iii) remove any hang tags, price tickets, or inventory control tags affixed to any Merchandise. Merchant and Agent agree to cooperate with each other to conduct the Inventory Taking commencing at a time that would minimize the number of hours that such locations would be closed for business.

Inventory Taking. The Merchant and the Agent shall use best efforts to cause to be taken a SKU and retail physical or “scan” price inventory of the Merchandise located in and an audit of the Stores Ticketed Price of the Merchandise (the “Inventory Taking”), subject to ) commencing at the availability close of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all business at each of the Stores no later than 10 days after the Sale Commencement Date on a date mutually agreed upon by Agent and Merchant (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent shall jointly employ a RGIS, WIS or another mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking Agent shall be conducted responsible for 50% of the costs and fees of the inventory taking service as an Expense hereunder, and the balance of such costs and fees shall be paid by Merchant, provided, however, that Merchant shall not be responsible for out-of-pocket costs (which costs shall be treated as an Expense hereunder) incurred by Agent in accordance connection with the procedures and instructions attached hereto presence of Agent’s employees or representatives at the Inventory Taking. Except as Exhibit 5.4 (provided in the “Inventory Taking Instructions”). The immediately preceding sentence, Merchant and Agent shall bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may shall each 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, provided that senior representatives of the inventory taking service. Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in at each of the Stores, the applicable Stores Store such Store shall be closed to the public and no sales or other transactions shall be conducted. The Merchant and procedures to be used in the Agent agree to cooperate with each other to conduct of the Inventory Taking and its verifications are set forth on Exhibit 5.1 attached hereto. In order to facilitate the Inventory Taking, Merchant agrees to make its SKU data files and related computer hardware and software available to Agent and the inventory taking service commencing prior to the Inventory Date. In connection with the Inventory Taking, but prior to the final verification thereof, Agent and Merchant shall perform an audit of the Ticketed Price by comparing a sample of SKU selling prices of items of Merchandise ascertained from the Inventory Taking with the actual prices at a time that would minimize which such items of Merchandise were offered to the number public at the Stores as of hours that the Inventory Date. The procedures for this audit shall be agreed upon between Merchant and Agent in good faith. If the SKU selling price is greater than the actual price at which items of Merchandise were offered to the public as of the Inventory Date, Merchant and Agent shall agree on an adjustment to the Cost Price to account for such locations would be closed for businessdiscrepancy in good faith.

Inventory Taking. The Merchant and (i) Subject to the Agent shall adjustment provisions of this Section 5.1(a), the parties have agreed to use best efforts the current book value of inventory as of the Sale Commencement Date reflected on the Cost File to cause to be taken a SKU and retail physical inventory determine the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date; provided, however, that Merchant and Agent agree that the Merchandise transferred from the California Stores to other Stores shall be counted and checked at the time it is received at each applicable Stores by representatives of Merchant and Agent and that the results of such counts will be compared to the book value of inventory in the California Stores as of the Sale Commencement Date as reflected on the Cost File to determine the aggregate Cost Value of the Merchandise located at the California Stores on the Sale Commencement Date. In order to test the validity of the aggregate Cost Value of the Merchandise as reflected on Merchant’s current books and records, as soon as practicable following the Sale Commencement Date, Merchant and Agent shall cause a stock keeping unit (“SKU”)-level and Retail Price physical inventory to be taken of the Merchandise located in thirty-four (34) of the Stores (the “Test Stores”) (the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all of the Stores no later than 10 days after the Sale Commencement Date (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store). The Merchant and the Agent each shall designate 17 initial Test Stores, each in their sole discretions. Merchant and Agent shall jointly employ a mutually acceptable independent inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as Exhibit 5.4 5.1 (the “Inventory Taking Instructions”). The As an Expense, Agent shall be responsible for (i) fifty percent (50%) of the fees and expenses of the Inventory Taking Service, and (ii) fifty percent (50%) of the payroll and related benefits (subject to the Benefits Cap) for Retained Employees utilized in the conduct of the Inventory Taking. Except as provided in the immediately preceding sentence, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking. Merchant and Agent may each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the StoresTaking, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conductedconducted within the applicable Store. The Merchant and Agent further agree that until the Inventory Taking in a particular Store is completed, neither Merchant nor Agent shall: (i) move Merchandise within or about the Store so as to make any such items unavailable for counting as part of the Inventory Taking; or (ii) remove any hang tags, price tickets, inventory control tags affixed to any Merchandise or any other kind of in-store pricing signage within the Store. Merchant and Agent agree to cooperate with each other to conduct the Inventory Taking commencing and agree that the Inventory Taking will commence at a time that would will minimize the number of hours that such locations would will be closed for business. (ii) The results of the Inventory Taking at the Test Stores (and the Additional Test Stores if applicable) with respect to the Retail Price shall be determinative and shall be applied/extrapolated to all Stores/Merchandise. (iii) The results of the Inventory Taking at the Test Stores (and the Additional Test Stores, if applicable) shall be used to determine any adjustment as may be required to the calculation of the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date as follows: (A) for purposes of calculating the aggregate Cost Value of the Merchandise at the Test Stores and, if applicable, the Additional Test Stores (collectively, the “Inventoried Stores”), the actual Test Store results for the Inventoried Stores, as adjusted by Gross Rings for the period between the Sale Commencement Date and the date of the Inventory Taking for the applicable Test Store (the “Gross Rings Period”) shall be used; (B) for purposes of calculating the aggregate Cost Value of the Merchandise at the Stores that do not constitute Inventoried Stores (the “Non-Inventoried Stores”), the actual Test Store results at the Inventoried Stores shall be compared to Cost Value of the Merchandise at the Inventoried Stores so as to determine the variance (“Variance”), and the Variance shall be applied and extrapolated across all Non-Inventoried Stories; provided however; for the purposes of calculating the Variance, the Inventoried Stores having the results from the one highest and one lowest variance percentage shall be excluded. In the event that Merchant and/or Agent reasonably believes that the Variance is not a reasonably expected variance, Merchant and/or Agent may request an Inventory Taking at additional Stores beyond the initial 34 Test Stores (the “Additional Test Stores”) so as to minimize or eliminate the effect of the Variance extrapolation and the Additional Test Stores shall then be deemed Test Stores. The Cost Value and Retail Price determined pursuant to the provisions of this Section 5.1(a) shall be used for purposes of determining the level, mix and Cost Value-to-Retail Price relationship for all purposes under this Agreement. (b) Agent and Merchant agree that they will, and agree to cause their respective representatives to, cooperate and assist in the calculation of the aggregate Cost Value and Retail Price of the Merchandise. Merchant agrees to make available information relating to sales, units, costs and retail prices with respect to the Stores. Merchant will also make available to Agent books, records, work papers and personnel to the extent reasonably necessary to calculate the Cost Value and Retail Price of the Merchandise in connection with the Sale and to perform all other obligations set forth in this Agreement.

Inventory Taking. The (a) Commencing on the Sale Commencement Date, Merchant and the Agent shall use best commercially reasonable efforts to cause to be taken a SKU and retail level Retail Price physical inventory of the Merchandise located in the Stores (collectively, the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all each of the Stores no later than 10 days after the Sale Commencement Date as soon as practicable (the “Inventory Completion Date,” the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store), but in any event no later than fourteen (14) days after the Sale Commencement Date (subject to the availability of the Inventory Taking Service). The Merchant and the Agent shall jointly employ a RGIS or other mutually acceptable independent agreed upon national inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the customary procedures and instructions attached hereto as Exhibit 5.4 instructions, which shall be reasonably satisfactory to Agent and Merchant (the “Inventory Taking Instructions”). The As an Expense, in accordance with Section 4.1, Agent shall be responsible for fifty percent (50%) of cost of the Inventory Taking Service. Merchant shall be responsible for fifty percent (50%) of cost of the Inventory Taking Service. Except as provided in the immediately preceding two sentences and in Section 4.1, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking; provided that, in accordance with Section 4.1, Agent shall be obligated to pay fifty percent (50%) of the payroll and related benefit costs (subject to the Benefits Cap) for Retained Employees used during the Inventory Taking, and Merchant shall pay the remaining fifty percent (50%) of the payroll and related benefit costs for Retained Employees used during the Inventory Taking. Merchant, the Administrative Agent, Purchaser and JV Agent may each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the StoresTaking, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conductedconducted within the applicable Store. The Inventory Taking shall not take place on Saturdays, Sundays and federal holidays. Merchant and Agent further agree that until the Inventory Taking in a particular Store is completed, neither Merchant nor Agent agree shall: (i) move Merchandise within or about the Store so as to make any such items unavailable for counting as part of the Inventory Taking; (ii) remove or add any hang tags, price tickets, inventory control tags affixed to any Merchandise or any other kind of in-store pricing signage within the Store; (iii) transfer any Merchandise to or from that Store (other than Distribution Center Merchandise or On-Order Merchandise, which, in each case, is distinctly tagged or otherwise marked as such or recorded in Agent’s transfer log); or (iv) deliver any Additional Agent Merchandise to such Store (unless distinctly tagged or otherwise marked as such or recorded in Agent’s transfer log). Merchant agrees to cooperate with each other Agent to conduct the Inventory Taking commencing (including without limitation by making available to Agent information relating to sales, units, costs, Retail Price, and making available to Agent Merchant’s books, records, work papers and personnel to the extent reasonably necessary to calculate the Retail Price of the Merchandise). Each Store will be closed during the Inventory Taking; provided, however, that the parties agree that the Inventory Taking will commence at a time that would will minimize the number of hours that such locations would the Stores will be closed for business. The Inventory Taking, including, but not limited to the Final Inventory Report, shall be reviewed, reconciled, and mutually verified by the Merchant, JV Agent and Purchaser in writing as soon as practicable following the Inventory Taking. (b) At each Store, for the period from the Sale Commencement Date until the Inventory Date for such Store, Agent and Merchant shall jointly keep (i) a strict count of gross register receipts less applicable Sales Taxes but excluding any prevailing discounts (“Gross Rings”), and (ii) cash reports of sales within such Store. Register receipts shall show for each item sold the Retail Price for such item and the markdown or discount, if any, specifically granted by Agent in connection with such Sale. Any Merchandise included in the Sale using the Gross Rings method shall be included in Merchandise using the actual Retail Price of the Merchandise sold plus one and sixty-eight hundredths percent (1.68%) of the actual sales proceeds of the sale of such Merchandise to account for shrinkage. All such records and reports shall be made available to Agent and Merchant during regular business hours upon reasonable notice. Any Merchandise included in the Sale using the Gross Rings method shall be included as Merchandise.

Inventory Taking. The (a) Commencing on the Sale Commencement Date, Merchant and the Agent shall use best efforts to cause to be taken a SKU Cost Value and retail Retail Value physical inventory of the Merchandise located in the Stores and in Merchant's warehouse/distribution centers in Auburn, MA, Secaucus, NJ and Landover, MD, (collectively, the “Inventory Taking”), subject to the availability of the Inventory Taking Service (defined below) which Inventory Taking shall be completed in all each of the Stores Stores, and with respect to Merchandise located in Merchant’s warehouse/distribution centers prior to Merchandise being transferred to the Stores, in each case as soon as practicable (but absent extraordinary circumstances no later than 10 20 days after following the Sale Commencement Date Date) (the “Inventory Completion Date,” the date of the Inventory Taking at each Store and at each of Merchant’s warehouse/distribution centers being the “Inventory Date” for each such Store/warehouse/distribution center). The Merchandise that is in-transit as of the Inventory Date shall be subject to a supplemental Inventory Taking at the distribution center where such in-transit Merchandise is delivered prior to shipment to the Stores. Merchant and the Agent shall jointly employ a RGIS or other mutually acceptable independent agreed upon national inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with the procedures and instructions attached hereto as set forth on Exhibit 5.4 5.1(a) (the “Inventory Taking Instructions”). The As an Expense, Agent shall be responsible for fifty percent (50%) of the fees and expenses of the Inventory Taking Service plus one hundred percent (100%) of the payroll and related benefits for Retained Employees utilized in the conduct of the Inventory Taking. Merchant shall be responsible for fifty percent (50%) of the fees and expenses of the Inventory Taking Service. Except as provided in the immediately preceding two sentences, Merchant and Agent shall each bear their respective costs and expenses relative to the Inventory Taking. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and Agent may each 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, provided that senior representatives of the . Merchant and the Agent shall be personally present at the Inventory Taking at the first five Stores in order to establish the standards for the Inventory Taking in the remaining Stores. The Agent shall be responsible for 50% of the fees and expenses of the Inventory Taking Service as an Expense hereunder and the Merchant shall be responsible for the remaining fees and expenses of such Inventory Taking Service. Except as provided in the preceding sentence, the Merchant and the Agent shall each bear their respective costs and expenses relative to the Inventory Taking. The Inventory Taking shall, in any event, be reconciled within seven (7) days after its completion (and the Agent and the Merchant shall use their reasonable best efforts to accomplish such reconciliation within such seven-day period). The Merchant and the Agent agree agrees that during the conduct of the Inventory Taking in each of the StoresTaking, the applicable Stores Store shall be closed to the public public, and no sales or other transactions shall be conductedconducted within the applicable Store. The Merchant and the Agent further agree to cooperate with each other to conduct that until the Inventory Taking commencing at in a time that would minimize particular Store is completed, neither Merchant nor Agent shall: (i) move Merchandise within or about the number Store so as to make any such items unavailable for counting as part of hours that such locations would be closed for business.the Inventory Taking; or