Common use of Inventory Value Clause in Contracts

Inventory Value. (a) Maxxim shall provide Buyer with access to its inventory cycle counts relating to the Products upon Buyer's request. Buyer shall have the right to perform spot tests to verify the accuracy of such cycle counts to its satisfaction. If Buyer is not satisfied with the accuracy of such cycle counts, it shall notify Maxxim of such fact at least twenty (20) days prior to Closing, and Maxxim shall undertake thereafter a physical count of the Inventories being transferred to Buyer hereunder. Maxxim shall give Buyer at least 72 hours notice of the time and date on which it plans to commence such physical count and Buyer will have the right to have its representatives present if it so elects. Maxxim shall determine the value of the Inventories in accordance with the criteria set forth in Schedule 2.2. The value of the Inventories shall be adjusted on the Closing Date to eliminate the value of any Inventories sold and shipped between the date of the physical count of the Inventories and the Closing Date and the value of the number of each Product in excess of a 12 months' supply of such Product, and to add the value of any Inventories received between the date of the physical count of the Inventories and the Closing Date ("Adjusted Inventories"). (b) Maxxim shall prepare for shipping, arrange to have shipped by such carrier as Buyer shall designate, at Buyer's cost, and have loaded onto such carrier's truck for shipment to Buyer, at Buyer's cost, all of the Inventories located at facilities other than the Clarksburg, West Virginia Facility. Maxxim shall count the Inventories prior to shipment to Buyer. Maxxim shall obtain a receipt from the carrier shipping such Inventories for the quantities of the Inventories counted by Maxxim and shall promptly provide a copy to Buyer. Maxxim shall take reasonable precautions to ensure that the Inventories will not be damaged prior to shipment. All of the Inventories shall be delivered F.O.

Inventory Value. (a) Maxxim No later than five (5) days after the date of this Agreement, Seller shall provide Buyer deliver to Purchaser a letter signed by Seller’s independent auditors describing in reasonable detail the procedures undertaken by such auditors in connection with access to its inventory cycle counts relating measuring and testing the Inventory. At least five (5) Business Days prior to the Products upon Buyer's request. Buyer Closing, Seller shall have close each of the right to perform spot tests to verify Premises and cease all sales and transfers of Inventory thereat (the accuracy date of such cycle counts closure and cessation, the “Shutdown Date”), provided that Seller may continue, from and after the Shutdown Date, to transfer Excluded Inventory to Seller’s other store locations. As used herein, “Excluded Inventory” shall mean any Inventory in which the name of Seller or any of its satisfactionsubsidiaries or any tradenames under which the Seller or any of its subsidiaries operates is inscribed or otherwise attached thereto. If Buyer is not satisfied with For purposes of Sections 2.2(b) and 2.2(c) hereof, shortly after the accuracy Shutdown Date the Inventory will be valued as of such cycle counts, it shall notify Maxxim of such fact at least twenty (20) days prior to Closing, and Maxxim shall undertake thereafter the Shutdown Date based upon a physical count inventory (the cost of which shall be shared equally by Seller and Purchaser) taken of the Inventories being transferred to Buyer hereunder. Maxxim shall give Buyer at least 72 hours notice Inventory on hand as of the time and date on which it plans Shutdown Date at each of the Premises by RGIS Inventory Specialists (“RGIS”). Seller will make its personnel available to commence assist RGIS in performing such physical count inventory and Buyer will have the right shall permit representatives of Purchaser to have its representatives present if it so electsobserve such physical inventory. Maxxim shall Upon completion thereof, Seller shall, in consultation with Purchaser and in accordance with Section 2.2(b) of this Agreement, determine the value of the Inventories in accordance with the criteria set forth in Schedule 2.2. The value following: (i) inventory of the Inventories Business consisting of merchandise in the current assortment; (ii) inventory of the Business consisting of salable merchandise in packaway or other backroom facilities; and (iii) inventory of the Business consisting of discontinued items (the items described in Sections 2.2(a)(i), (ii) and (iii) of this Agreement shall hereinafter be referred to as the “Inventory”). Promptly following such determination, Seller shall deliver to Purchaser written notice thereof, together with reasonable detail showing the calculations therefor. Purchaser shall be adjusted on the Closing Date entitled to eliminate the value of any Inventories sold and shipped between the date perform sample “price testing” of the physical count of the Inventories and the Closing Date and the value of the number of each Product in excess of a 12 months' supply of such Product, and to add the value of any Inventories received between the date of the physical count of the Inventories and the Closing Date ("Adjusted Inventories"). (b) Maxxim shall prepare for shipping, arrange to have shipped by such carrier as Buyer shall designate, at Buyer's cost, and have loaded onto such carrier's truck for shipment to Buyer, at Buyer's cost, all of the Inventories located at facilities other than the Clarksburg, West Virginia Facility. Maxxim shall count the Inventories prior to shipment to Buyer. Maxxim shall obtain a receipt from the carrier shipping such Inventories for the quantities of the Inventories counted by Maxxim Inventory and shall promptly provide a copy notify Seller of any initial disagreement with Seller’s determination. In the event of such disagreement, the parties shall endeavor to Buyer. Maxxim shall take reasonable precautions to ensure that the Inventories will not be damaged prior to shipment. All of the Inventories shall be delivered F.O.resolve their differences promptly.

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