Common use of Inventory Count Clause in Contracts

Inventory Count. (a) The Buyer and Seller shall cause to be taken a physical inventory count by stock keeping unit ("SKU") of all Inventory held by the Buyer as of the Effective Time (the "Inventory Count"). The Inventory Count shall be taken by RGIS Inventory Services ("RGIS"), or if RGIS is unable to so serve, by an independent inventory service designated jointly by the Seller and the Buyer (the "Inventory Service"). The Seller shall pay the entire cost of the Inventory Service. The instructions to be delivered to the Inventory Service with respect to the conduct of the Inventory Count shall be mutually agreed upon by the Buyer and the Seller and shall be delivered to the Inventory Service as promptly as possible following execution of this Agreement; provided, that the Buyer and the Seller shall each act reasonably in reaching an agreement on such instructions. The parties currently contemplate that the Inventory Count shall be accomplished by physical counts taken at each of the Stores and at the Distribution Facility over a four week period beginning approximately two weeks before the Closing Date and ending approximately two weeks after the Closing Date. The parties currently contemplate that the physical counts will then be rolled forward or backward, as the case may be, based on Gross Rings, as hereinafter defined. In the event that the Inventory Count is conducted at any Store location on a date that is before the Closing Date, then for the period from the completion of the Inventory Count at such Store location until the Closing Date, the Seller shall keep a count of units sold multiplied by the Inventory Retail Value ("Gross Rings"). All such reports shall be made available by the Seller to the Buyer on a daily basis. In the event that the Inventory Count is conducted at any Store location on a date that is after the Closing Date, then for the period from the Closing Date to the completion of the Inventory Count at such Store location, the Buyer (or the Seller on the Buyer's behalf if such is called for under the Transition Services Agreement) shall keep a count of the Gross Rings. All such reports shall be made available by the Buyer to the Seller on a daily basis. (b) The Inventory Service shall be additionally instructed by the Buyer and the Seller to prepare and deliver to the Buyer and the Seller a final certified report of Inventory Count immediately upon completion of the Inventory Count, and in no event later than the earlier of (i) 30 calendar days after Closing, or (ii) seven days after the Inventory Count of the last Store. Promptly (and in no event later than seven calendar days) following the day on which the Inventory Service shall have delivered the final report of Inventory Count to Sellers and Buyer, Sellers and Buyer shall jointly calculate and agree, each acting reasonably and in good faith, an actual Wholesale Value of Inventory and Inventory Aging Adjustment as of the Closing Date based upon the principles set forth in Section 3.1(a) above and the procedures described in Section 3.5(a). If the Buyer and the Seller are unable to reach an agreement regarding the Wholesale Value of Inventory and Inventory Aging Adjustment on or prior to 14 calendar days following the delivery of the Inventory Count by the Inventory Service, on the next Business Day thereafter the disagreement shall be presented to a leading independent accounting firm to be mutually selected by the Buyer and the Seller. Such accounting firm shall be instructed to render a written decision as to the Wholesale Value of Inventory and Inventory Aging Adjustment within 30 calendar days thereafter, and such decision shall be final and binding upon each of the parties. The fees, costs and expenses incurred in connection therewith shall be shared in equal amounts by the Buyer and the Seller. The date on which the Buyer and the Seller jointly agree upon the Wholesale Value of Inventory and Inventory Aging Adjustment, or the date on which the independent accounting firm renders its written decision with respect to Wholesale Value of Inventory and Inventory Aging Adjustment is the "Determination Date" hereunder.

Inventory Count. (a) The Buyer and Seller As promptly as practicable but no later than May 15, 2001, Washington Inventory Service, RGIS Inventory Specialists or another independent third party inventory firm acceptable to both parties hereto shall cause to be taken perform a physical inventory count by stock keeping unit ("SKU") of all Inventory held by the Buyer as of the Effective Time (the "Inventory Count"). The cost of such Inventory Count shall be taken by RGIS Inventory Services ("RGIS"), or if RGIS is unable to so serve, by an independent inventory service designated jointly borne equally by the Seller and the Buyer Purchaser. The Inventory Count shall be conclusive and binding upon the Seller and the Purchaser. (b) The Purchaser and the "Seller agree that they will, and agree to cause their respective employees to use reasonable efforts to cooperate and assist in the Inventory Service")Count, including without limitation, making available their books, records, work papers and personnel. The Seller shall pay be entitled to use the entire cost of the Inventory Service. The instructions to be delivered to the Inventory Service with respect to the conduct of the Inventory Count shall be mutually agreed upon by the Buyer Retained Employees, and the Seller and shall be delivered to the Inventory Service as promptly as possible following execution of this Agreement; provided, that the Buyer Purchaser and the Seller shall each act reasonably be entitled to review and have access to the books, records, work papers and personnel relating to the Business, in reaching an agreement on such instructionsconnection with the performance of the Inventory Count. The parties currently contemplate that the Inventory Count shall be accomplished by physical counts taken at each of the Stores and at the Distribution Facility over a four week period beginning approximately two weeks before reconciled to the Closing Date by the Purchaser and ending approximately two weeks after reviewed and reasonably approved by the Closing DateSeller. The parties currently contemplate that Purchaser shall provide the physical counts will then be rolled forward Seller with full reasonable access, at no cost to the Seller, to any and all documents, personnel or backward, as other information necessary to permit the case may be, based on Gross Rings, as hereinafter definedSeller to review and approve such reconciliation. In the event that the Inventory Count is conducted at any Store location on a date that is before Purchaser or the Closing DateSeller disputes the inventory reconciliation, then for KPMG or any other independent third-party mutually acceptable to both parties, will be retained to verify the period reconciliation (the "Inventory Verification"). The cost of such Inventory Verification shall be borne equally by the Purchaser and the Seller. The Bankruptcy Court shall retain jurisdiction to hear any disputes arising from the completion of or related to the Inventory Count at such Store location until or Inventory Verification. (c) At or prior to the Closing Date, the Purchaser and the Seller shall keep a count agree that they will use their best efforts to identify all prepaid and other expenses of units sold multiplied by the Inventory Retail Value Business that are paid or come due from time to time, such as real property Taxes, insurance and other obligations (collectively, the "Gross RingsPro Rated Obligations")) related to the Acquired Assets. All As to all such reports Pro Rated Obligations, the parties agree that any amounts prepaid prior to the Closing that relate to post-Closing periods shall be made available by the Seller to the Buyer on a daily basis. In the event that the Inventory Count is conducted at any Store location on a date that is after the Closing Date, then for the period from the Closing Date to the completion of the Inventory Count at such Store location, the Buyer (or the Seller on the Buyer's behalf if such is called for under the Transition Services Agreement) shall keep a count of the Gross Rings. All such reports shall be made available by the Buyer credited to the Seller on a daily basis. (b) The Inventory Service and any amounts due or payable post-Closing that relate to periods prior to the Closing shall be additionally instructed by the Buyer and the Seller to prepare and deliver credited to the Buyer and Purchaser. All Pro Rated Obligations shall be accounted for at the Seller a final certified report of Inventory Count immediately upon completion of the Inventory CountClosing, and in no event later than any amounts due and owing by either party to the earlier of (i) 30 calendar days after Closing, or (ii) seven days after the Inventory Count of the last Store. Promptly (and in no event later than seven calendar days) following the day on which the Inventory Service shall have delivered the final report of Inventory Count other relating to Sellers and Buyer, Sellers and Buyer shall jointly calculate and agree, each acting reasonably and in good faith, an actual Wholesale Value of Inventory and Inventory Aging Adjustment as of the Closing Date based upon the principles set forth in Section 3.1(a) above and the procedures described in Section 3.5(a). If the Buyer and the Seller are unable to reach an agreement regarding the Wholesale Value of Inventory and Inventory Aging Adjustment on or prior to 14 calendar days following the delivery of the Inventory Count by the Inventory Service, on the next Business Day thereafter the disagreement Pro Rated Obligations shall be presented to a leading independent accounting firm to be mutually selected by the Buyer and the Seller. Such accounting firm shall be instructed to render a written decision as offset against or added to the Wholesale Value of Inventory and Inventory Aging Adjustment within 30 calendar days thereafter, and such decision shall be final and binding upon each of cash Purchase Price at the parties. The fees, costs and expenses incurred in connection therewith shall be shared in equal amounts by the Buyer and the Seller. The date on which the Buyer and the Seller jointly agree upon the Wholesale Value of Inventory and Inventory Aging Adjustment, or the date on which the independent accounting firm renders its written decision with respect to Wholesale Value of Inventory and Inventory Aging Adjustment is the "Determination Date" hereunderClosing.

Inventory Count. A physical count of the Inventory (aother than the Excluded Inventory) The shall be made by Buyer, Seller and an independent inventory service mutually agreed to by the Parties (the "Inventory Service") on dates mutually agreeable to Buyer and Seller on or as near as practicable to the day before the Closing Date. The Inventory Service shall cause to be taken make a physical inventory count by stock keeping unit ("SKU") of all Inventory held by the Buyer as accounting of the Effective Time Inventory (the "Inventory Count"). The Inventory Count shall be taken by RGIS Inventory Services ("RGIS"), or if RGIS is unable to so serve, by an independent inventory service designated jointly by ) at each Store Property on and as of the Seller and date of the Buyer count (the "Inventory ServiceDate"), in accordance with mutually agreed upon instructions consistent with the inventory procedures set forth on Schedule 4.2(b). The Seller Both Parties shall pay the entire cost of have their respective representatives present and available during the Inventory ServiceCount. The instructions These representatives will attempt, in good faith, to be delivered to the Inventory Service with respect to the conduct of resolve any disputes respecting quantity or pricing which may arise during the Inventory Count shall be mutually agreed upon by the Buyer and the Seller and shall be delivered in accordance with Schedule 4.2(b). With respect to any Store Property for which the Inventory Service as promptly as possible following execution Date precedes the close of this Agreement; provided, that business on the Buyer and the Seller shall each act reasonably in reaching an agreement on such instructions. The parties currently contemplate that the Inventory Count shall be accomplished by physical counts taken at each of the Stores and at the Distribution Facility over a four week period beginning approximately two weeks before the Closing Date and ending approximately two weeks after the Closing Date. The parties currently contemplate that the physical counts will then be rolled forward or backward, as the case may be, based on Gross Rings, as hereinafter defined. In the event that the Inventory Count is conducted at any Store location on a date that is day before the Closing Date, then for the period from Inventory Purchase Price shall be determined on the completion basis of the value of the Inventory Count at such Store location until the Closing Date, the Seller shall keep a count of units sold multiplied by the Inventory Retail Value ("Gross Rings"determined in accordance with Schedule 4.2(b). All such reports shall be made available by the Seller to the Buyer on a daily basis. In the event that the Inventory Count is conducted at any Store location on a date that is after the Closing Date, then for the period from the Closing Date to the completion of the Inventory Count at such Store location, the Buyer (or the Seller on the Buyer's behalf if such is called for under the Transition Services Agreement) shall keep a count of the Gross Rings. All such reports shall be made available by the Buyer to the Seller on a daily basis. (b) The Inventory Service shall be additionally instructed by the Buyer and the Seller to prepare and deliver to the Buyer and the Seller a final certified report of Inventory Count immediately upon completion of determined during the Inventory Count, adjusted for sales and in no event later than the earlier purchases of (i) 30 calendar days after Closing, or (ii) seven days after inventory between the Inventory Count Date and the Closing Date based on purchase and sales records of the last StoreSeller, as mutually agreed between Buyer and Seller. Promptly (and in no event later than seven calendar days) following the day on which The value of the Inventory Service shall have delivered (as finally determined in accordance with Schedule 4.2(b) and the final report provisions of Inventory Count to Sellers and Buyer, Sellers and Buyer shall jointly calculate and agree, each acting reasonably and in good faith, an actual Wholesale Value of Inventory and Inventory Aging Adjustment this Section 4.2(c)) as of the Closing Date based upon shall be the principles set forth in Section 3.1(a) above and the procedures described in Section 3.5(a)Inventory Purchase Price. If the Buyer and Seller shall each pay one half (1/2) of the Seller are unable to reach an agreement regarding the Wholesale Value of Inventory and Inventory Aging Adjustment on or prior to 14 calendar days following the delivery cost of the Inventory Count Service and will be invoiced separately. Departments not inventoried by the Inventory Service, on the next Business Day thereafter the disagreement Service shall be presented to a leading independent accounting firm to be inventoried by appropriate store personnel, as specified on Schedule 4.2(b), at mutually selected by agreed upon times and in the presence of representatives of Buyer and the Seller. Such accounting firm shall be instructed to render a written decision as to the Wholesale Value of Inventory and Inventory Aging Adjustment within 30 calendar days thereafter, and such decision shall be final and binding upon each of the parties. The fees, costs and expenses incurred in connection therewith shall be shared in equal amounts by the Buyer and the Seller. The date on which the Buyer and the Seller jointly agree upon the Wholesale Value of Inventory and Inventory Aging Adjustment, or the date on which the independent accounting firm renders its written decision with respect to Wholesale Value of Inventory and Inventory Aging Adjustment is the "Determination Date" hereunder.

Inventory Count. (a) The Buyer Promptly following the Closing Date, if GE so desires, Crompton and Seller GE shall cause cooperate to be taken take a physical inventory count by stock keeping unit of the OSi Inventories ("SKU"other than OSi Inventories located at the sites of customers of the OSi Business) of all Inventory held by the Buyer as of the Effective Time Closing Date (the "Inventory CountOSI CLOSING INVENTORY COUNT"). The If GE so elects, GE and GE's accountants may participate in the OSi Closing Inventory Count. Such OSi Closing Inventory Count shall be taken by RGIS Inventory Services ("RGIS"), or if RGIS is unable to so serve, by an independent inventory service designated jointly by in accordance with the Seller and the Buyer (the "Inventory Service"). The Seller shall pay the entire cost historical inventory-taking procedures of the Inventory Service. The instructions OSi Business, which have been disclosed in writing to be delivered GE prior to the date hereof. Crompton and GE hereby agree that the OSi Closing Inventory Service Count shall be used in determining the Closing OSi Net Assets pursuant to Section 2.10. Disputes with respect to the conduct OSi Closing Inventory Count may only be settled either by GE and Crompton or by referral to the Referee pursuant to Section 2.10. GE shall coordinate with Crompton with respect to the timing of the OSi Closing Inventory Count shall be mutually agreed upon by the Buyer and the Seller and shall be delivered to the Inventory Service as promptly as possible following execution of this Agreement; provided, that the Buyer and the Seller shall each act reasonably in reaching an agreement on such instructions. The parties currently contemplate that the Inventory Count shall be accomplished by physical counts taken at each of the Stores and at the Distribution Facility over a four week period beginning approximately two weeks before the Closing Date and ending approximately two weeks after the Closing Date. The parties currently contemplate that the physical counts will then be rolled forward or backward, as the case may be, based on Gross Rings, as hereinafter defined. In the event that the Inventory Count is conducted at any Store location on a date that is before the Closing Date, then for the period from the completion of the Inventory Count at such Store location until the Closing Date, the Seller shall keep a count of units sold multiplied by the Inventory Retail Value ("Gross Rings"). All such reports shall be made available by the Seller to the Buyer on a daily basis. In the event that the Inventory Count is conducted at any Store location on a date that is after the Closing Date, then for the period from the Closing Date to the completion of the Inventory Count at such Store location, the Buyer (or the Seller on the Buyer's behalf if such is called for under the Transition Services Agreement) shall keep a count of the Gross Rings. All such reports shall be made available by the Buyer to the Seller on a daily basisCount. (b) The Inventory Service Promptly following the Closing Date, if Crompton so desires, GE and Crompton shall be additionally instructed by the Buyer and the Seller cooperate to prepare and deliver to the Buyer and the Seller take a final certified report of Inventory Count immediately upon completion count of the Inventory Count, and in no event later SC Inventories (other than SC Inventories located at the earlier sites of (i) 30 calendar days after Closing, or (ii) seven days after the Inventory Count customers of the last Store. Promptly (and in no event later than seven calendar daysSC Business) following the day on which the Inventory Service shall have delivered the final report of Inventory Count to Sellers and Buyer, Sellers and Buyer shall jointly calculate and agree, each acting reasonably and in good faith, an actual Wholesale Value of Inventory and Inventory Aging Adjustment as of the Closing Date based upon (the principles set forth in Section 3.1(a) above and the procedures described in Section 3.5(a"SC CLOSING INVENTORY COUNT"). If Crompton so elects, Crompton and Crompton's accountants may participate in the Buyer and SC Closing Inventory Count. Such SC Closing Inventory Count shall be taken in accordance with the Seller are unable historical inventory-taking procedures of the SC Business, which have been disclosed in writing to reach an agreement regarding the Wholesale Value of Inventory and Inventory Aging Adjustment on or Crompton prior to 14 calendar days following the delivery of date hereof. GE and Crompton hereby agree that the SC Closing Inventory Count by the Inventory Service, on the next Business Day thereafter the disagreement shall be presented used in determining the Closing SC Net Assets pursuant to a leading independent accounting firm to be mutually selected by the Buyer and the Seller. Such accounting firm shall be instructed to render a written decision as to the Wholesale Value of Inventory and Inventory Aging Adjustment within 30 calendar days thereafter, and such decision shall be final and binding upon each of the parties. The fees, costs and expenses incurred in connection therewith shall be shared in equal amounts by the Buyer and the Seller. The date on which the Buyer and the Seller jointly agree upon the Wholesale Value of Inventory and Inventory Aging Adjustment, or the date on which the independent accounting firm renders its written decision with respect to Wholesale Value of Inventory and Inventory Aging Adjustment is the "Determination Date" hereunderSection 2.

Inventory Count. (a) The Immediately following the entry of the Approval Order, Seller and Buyer and Seller shall cause to be taken a an "SKU" physical inventory count by stock keeping unit ("SKU") of all Inventory held by the Buyer as of the Effective Time (the "Inventory Count")) of all Inventory located in the Closing Stores and at Seller's distribution centers in Ashland, Virginia and Richmond, Virginia and at Seller's jewelry office in New York, New York. Each such Closing Store and distribution center and the New York jewelry office shall be closed while the Inventory Count for such Closing Store and distribution center and the New York jewelry office is in progress. The Inventory Count shall be completed at all of the Closing Stores and distribution centers and the New York jewelry office no later than five (5) calendar days after the entry of the Approval Order, time being of the essence. The Closing with respect to each Closing Store and the payment of the Cash Consideration in respect of the Inventory located in such Closing Store and distribution centers and the New York jewelry office shall occur on the next Business Day following the completion of the Inventory Count for each Closing Store and distribution centers and the New York jewelry office. The Inventory Count shall be taken by RGIS Inventory Services ("RGIS"), or if RGIS is unable to so serve, by an and/or another independent inventory service designated jointly by the Seller and the Buyer (the "Inventory Service"). The Seller shall pay the entire cost of the Inventory ServiceService shall be paid equally by Seller and Buyer. Once the Inventory Count commences in any Closing Store and until the completion of the Inventory Count in such Closing Store, neither Seller nor Buyer shall enter such Closing Store without each having a representative present; provided, however, that, until the completion of the Inventory Count, Buyer and Seller shall each be entitled to enter any Closing Store at any time after providing prior notice to the other party in the event of an emergency at such store. The instructions to be delivered to the Inventory Service with respect to the conduct of the Inventory Count shall be mutually agreed upon by the Buyer and the Seller five days prior to Closing and shall be delivered to the Inventory Service as promptly as possible following execution of this Agreement; provided, that the Buyer such agreement. From and the Seller shall each act reasonably in reaching an agreement on such instructions. The parties currently contemplate that the Inventory Count shall be accomplished by physical counts taken at each of the Stores and at the Distribution Facility over a four week period beginning approximately two weeks before the Closing Date and ending approximately two weeks after the Closing Date. The parties currently contemplate that the physical counts will then be rolled forward or backward, as the case may be, based on Gross Rings, as hereinafter defined. In the event that the Inventory Count is conducted at any Store location on a date that is before the Closing Date, then for the period from the completion of the Inventory Count at in each Closing Store, Buyer shall conduct Store Closing Sales in such Closing Store, as Seller's agent. Upon full payment of the Cash Consideration and the Expenses of Sale (as defined in the Addendum), Buyer shall have the right to retain, as its sole and exclusive property, free and clear of Encumbrances, all proceeds with respect to such Store location until Closing Sales. Buyer shall receive the benefit of all Store Closing Date, the Seller shall keep a count of units sold multiplied by the Inventory Retail Value ("Gross Rings"). All such reports shall be made available by the Seller to the Buyer on a daily basis. In the event that the Inventory Count is Sales conducted at any in each Closing Store location on a date that is from and after the Closing Date, then for the period from the Closing Date to the completion of the Inventory Count at with respect to such Store locationClosing Store, and Buyer shall be responsible for those expenses, for which Buyer is responsible under the terms of this Agreement and the Addendum, that are attributable to the Closing Stores from and after the entry of the Approval Order. In order to facilitate the Inventory Count, immediately following the execution of this Agreement by Seller and Buyer, Seller agrees to make its SKU and pricing data files and related computer hardware and software available to the Buyer (or and the Seller on the Buyer's behalf if such is called for under the Transition Services Agreement) shall keep a count of the Gross RingsInventory Service. All such reports shall be made available by the Buyer to the Seller on a daily basis. (b) The Inventory Service shall be additionally instructed by the Buyer and the Seller to prepare and deliver to the Buyer and Seller, immediately upon completion of the Seller a Inventory Count at each Closing Store, the final certified report of Inventory Count immediately upon completion of the Inventory Count, and in no event later than the earlier of (i) 30 calendar days after Closing, or (ii) seven days after the Inventory Count of the last for each Closing Store. Promptly (and in no event later than seven calendar days) following the day on which the Inventory Service shall have delivered the final report of Inventory Count to Sellers and Buyer, Sellers and Buyer shall jointly calculate and agree, each acting reasonably and in good faith, an actual Wholesale Value of Inventory and Inventory Aging Adjustment as of the Closing Date based upon the principles set forth in Section 3.1(a) above and the procedures described in Section 3.5(a). If the Buyer and the Seller are unable to reach an agreement regarding the Wholesale Value of Inventory and Inventory Aging Adjustment on or prior to 14 calendar days following the delivery of the Inventory Count by the Inventory Service, on the next Business Day thereafter the disagreement shall be presented to a leading independent accounting firm to be mutually selected by the Buyer and the Seller. Such accounting firm shall be instructed to render a written decision as to the Wholesale Value of Inventory and Inventory Aging Adjustment within 30 calendar days thereafter, and such decision shall be final and binding upon each of the parties. The fees, costs and expenses incurred in connection therewith shall be shared in equal amounts by the Buyer and the Seller. The date on which the Buyer and the Seller jointly agree upon the Wholesale Value of Inventory and Inventory Aging Adjustment, or the date on which the independent accounting firm renders its written decision with respect to Wholesale Value of Inventory and Inventory Aging Adjustment is the "Determination Date" hereunder.