Common use of Pro-rations Clause in Contracts

Pro-rations. At the Closing, Buyer and Sellers shall reimburse each other, as appropriate, for the following expenses applicable to the Business, all of which shall be prorated such that Sellers are responsible for their pro-rata share (determined on a per diem basis) of the expenses accrued prior to the Effective Time except as provided below, and Buyer is responsible for its pro-rata share (determined on a per diem basis) of the expenses accrued on and after the Effective Time except as provided below: (i) real estate taxes and personal property taxes accrued in connection with the Leases assigned to Buyer (or its Affiliate) or otherwise accrued with respect to the Purchased Assets; provided, that the method of proration shall be consistent with customs in the county where the property is located; (ii) utility expenses associated with operation of the Restaurants, based upon actual amounts billed by the utilities; (iii) rent payments and any common area charges or other similarly pro-rated charges due under the Leases assigned to Buyer (or its Affiliate) (including any percentage rent on an annualized basis, as may be adjusted for recaptured landlord allowances); (iv) all payments (if any) due to BWW or to any cooperative marketing group under the Franchise Agreements assigned to Buyer (or its Affiliate) (excluding any BWW Transfer Fees) which accrue during the month of the Closing; provided, however, that to the extent such payments can be calculated as a percentage of gross sales or other operating accounts that can be segregated between Sellers and Buyer under their respective accounting systems, such payments shall be excluded from the pro-rations required by this Section 2.05(d)(iv) and be paid directly by Sellers and Buyer, as the case may be; (v) liquor license fees paid by any Seller or any Affiliate of Sellers prior to the Effective Time to the extent that all or any portion of such fees related to a liquor Permit assigned to Buyer (or its Affiliate) with a post-Closing expiration date and are not refunded by the applicable Governmental Authority to Sellers or any Affiliate of Sellers; and (vi) any other items customarily prorated, as mutually agreed upon by the parties.

Pro-rations. At the Closing, Buyer and Sellers shall reimburse each other, as appropriate, for the following expenses applicable to the Business, all of which shall be prorated such that Sellers are responsible for their pro-rata share (determined on a per diem basis) of the expenses accrued prior to the Effective Time except as provided below, and Buyer is responsible for its pro-rata share (determined on a per diem basis) of the expenses accrued on and after the Effective Time except as provided below, provided, however, that the amount of the Cash Banks shall be credited against Sellers’ obligation to reimburse Buyer for such expenses: (i) real estate taxes and personal property taxes accrued in connection with the Leases assigned to Buyer (or its Affiliate) or otherwise accrued with respect to the Purchased Assets; provided, that based upon the method number of proration shall be consistent with customs days in the county where the property is locatedapplicable taxable period owned by each party taking into account that such taxes are paid in arrears; (ii) utility expenses associated with operation of the Restaurants, based upon actual amounts billed by the utilities. In connection therewith, Sellers or their Affiliates shall cause the meters for the utilities to be read as close as possible to the Closing Date and shall, to the extent meter readings are available, pay such utility expenses on the basis of such readings. For those utility expenses that meter readings as of the Closing Date are not available, the parties will pro-rate such utility expenses on the basis of the most recently issued bills therefor which are based on meter readings no earlier than thirty (30) days before the Closing Date, and such pro-ration shall be promptly recalculated by the parties after the Closing Date upon the receipt of the next utility bills; (iii) rent payments and any common area charges or other similarly pro-rated charges due under the Leases assigned to Buyer (or its Affiliate) (including any percentage rent on an annualized basis, as may be adjusted for recaptured landlord allowances); (iv) all payments (if any) due to BWW or to any cooperative marketing group under the Franchise Agreements assigned to Buyer (or its Affiliate) (excluding any BWW Transfer Fees) which accrue during the month of the Closing; provided, however, that to the extent such payments can be calculated as a percentage of gross sales or other operating accounts that can be segregated between Sellers and Buyer under their respective accounting systems, such payments shall be excluded from the pro-rations required by this Section 2.05(d)(iv) and be paid directly by Sellers and Buyer, as the case may be; (v) liquor license fees paid by any Seller or any Affiliate of Sellers prior to the Effective Time to the extent that all or any portion of such fees related to a liquor Permit assigned to Buyer (or its Affiliate) or subject to the Management Agreement with a post-Closing expiration date and are not refunded by the applicable Governmental Authority to Sellers or any Affiliate of Sellers; and (vi) any other items customarily prorated, as mutually agreed upon by the parties.

Pro-rations. At The Parties agree that any Apportioned Obligations, and any refund, rebate or similar payment received by the Seller or by the Buyer for any Taxes that are Apportioned Obligations, will be apportioned between the Seller and the Buyer as follows: (a) For Apportioned Obligations based upon or related to income or receipts, the Seller agrees to indemnify the Buyer for the amount of such Apportioned Obligations that would be payable if the relevant year or period ended on the Closing Date. (b) For Apportioned Obligations measured by the amount or level of any item (including, but not limited to, such Apportioned Obligations as are measured by the amount of capital or the value of intangibles) the Seller agrees to indemnify the Buyer for the amount of such Apportioned Obligations that are determined by multiplying (A) the amount or level of such items immediately prior to the Closing, Buyer and Sellers shall reimburse each otherby (B) a fraction, as appropriate, for the following expenses applicable to the Business, all numerator of which shall be prorated such that Sellers are responsible for their pro-rata share (determined on a per diem basis) is the number of calendar days in the portion of the expenses accrued Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. (c) For Apportioned Obligations consisting of unapplied cash security deposits, Buyer shall pay to Seller at Closing the amount of such unapplied cash security deposits and Seller shall indemnify Buyer for any amounts applied by any lessor under the Real Property Leases with respect to any event occurring prior to the Effective Time except as provided belowClosing. (d) For all Apportioned Obligations not described in (a) or (b), and the Seller agrees to indemnify the Buyer for the amount of such Apportioned Obligations that are determined by multiplying (A) the amount of such Apportioned Obligations for the entire Straddle Period, by (B) a fraction, the numerator of which is responsible for its pro-rata share (determined on a per diem basis) the number of calendar days in the portion of the expenses accrued Straddle Period ending on the Closing Date and after the Effective Time except as provided below: (i) real estate taxes and personal property taxes accrued in connection with denominator of which is the Leases assigned to Buyer (or its Affiliate) or otherwise accrued with respect to the Purchased Assets; provided, that the method number of proration shall be consistent with customs calendar days in the county where the property is located; (ii) utility expenses associated with operation of the Restaurants, based upon actual amounts billed by the utilities; (iii) rent payments entire Straddle Period. The Seller will pay Apportioned Obligations that are due and any common area charges payable on or other similarly pro-rated charges due under the Leases assigned to Buyer (or its Affiliate) (including any percentage rent on an annualized basis, as may be adjusted for recaptured landlord allowances); (iv) all payments (if any) due to BWW or to any cooperative marketing group under the Franchise Agreements assigned to Buyer (or its Affiliate) (excluding any BWW Transfer Fees) which accrue during the month of the Closing; provided, however, that to the extent such payments can be calculated as a percentage of gross sales or other operating accounts that can be segregated between Sellers and Buyer under their respective accounting systems, such payments shall be excluded from the pro-rations required by this Section 2.05(d)(iv) and be paid directly by Sellers and Buyer, as the case may be; (v) liquor license fees paid by any Seller or any Affiliate of Sellers prior to the Effective Time Closing Date, and bxxx the Buyer for any part of that amount apportioned to the extent Buyer. The Buyer will pay Apportioned Obligations that all are due and payable after the Closing Date and bxxx the Seller for any part of that amount apportioned to the Seller. Notwithstanding any other provision contained in this Agreement (including the limitations set forth in Sections 10.2 or 10.3), any obligation arising out of this Section 7.5 will not be considered a Loss, subject to any limits of minimum or maximum amounts, measurement of aggregate amount of Losses or any portion limit of such fees related to a liquor Permit assigned to Buyer (or its Affiliate) with a post-Closing expiration date and are not refunded by the applicable Governmental Authority to Sellers or any Affiliate of Sellers; and (vi) any other items customarily prorated, as mutually agreed upon by the partiestime.

Pro-rations. At the Closing, Buyer and Sellers shall reimburse each other, as appropriate, for the following expenses applicable to the Business, all of which shall be prorated such that Sellers are responsible for their pro-rata share (determined on a per diem basis) of the expenses accrued prior to the Effective Time except as provided below, and Buyer is responsible for its pro-rata share (determined on a per diem basis) of the expenses accrued on and after the Effective Time except as provided below: (i) real estate taxes and personal property taxes accrued in connection with the Leases assigned to Buyer (or its Affiliate) or otherwise accrued with respect to the Purchased Assets; provided, that the method of proration shall be consistent with customs in the county where the property is located; (ii) utility expenses associated with operation of the Restaurants, based upon actual amounts billed by the utilities; (iii) rent payments and any common area charges or other similarly pro-rated charges due under the Leases assigned to Buyer (or its Affiliate) (including any percentage rent on an annualized basis, as may be adjusted for recaptured landlord allowances); (iv) all payments (if any) due to BWW or to any cooperative marketing group under the Franchise Agreements assigned to Buyer (or its Affiliate) (excluding any BWW Transfer Fees) which accrue during the month of the Closing; provided, however, that to the extent such payments can be calculated as a percentage of gross sales or other operating accounts that can be segregated between Sellers and Buyer under their respective accounting systems, such payments shall be excluded from the pro-rations required by this Section 2.05(d)(iv2.05(e)(iv) and be paid directly by Sellers and Buyer, as the case may be; (v) liquor license fees paid by any Seller or any Affiliate of Sellers prior to the Effective Time to the extent that all or any portion of such fees related to a liquor Permit assigned to Buyer (or its Affiliate) or subject to the Management Agreement with a post-Closing expiration date and are not refunded by the applicable Governmental Authority to Sellers or any Affiliate of Sellers; and (vi) any other items customarily prorated, as mutually agreed upon by the parties.