Common use of Pro-rations Clause in Contracts

Pro-rations. 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, by (B) a fraction, the numerator of which is the number of calendar days in the portion of the 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 Closing. (d) For all Apportioned Obligations not described in (a) or (b), 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or prior to the Closing Date, and b▇▇▇ the Buyer for any part of that amount apportioned to the Buyer. The Buyer will pay Apportioned Obligations that are due and payable after the Closing Date and b▇▇▇ 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 limit of time.

Pro-rations. The Parties agree 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 any Apportioned ObligationsSellers 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 any refundBuyer 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, rebate or similar payment received by provided, however, that the Seller or by amount of the Cash Banks shall be credited against Sellers’ obligation to reimburse Buyer for any Taxes that are Apportioned Obligations, will be apportioned between the Seller and the Buyer as followssuch expenses: (ai) For Apportioned Obligations 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, 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, by (B) a fraction, the numerator of which is the number of calendar days in the portion applicable taxable period owned by each party taking into account that such taxes are paid in arrears; (ii) utility expenses associated with operation of the Straddle Period ending on 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 denominator of which is extent meter readings are available, pay such utility expenses on 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 basis 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 Closing. (d) readings. For all Apportioned Obligations not described in (a) or (b), the Seller agrees to indemnify the Buyer for the amount those utility expenses that meter readings as 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and are not available, the denominator parties will pro-rate such utility expenses on the basis of the most recently issued bills therefor which is the number of calendar are based on meter readings no earlier than thirty (30) days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or prior to before the Closing Date, and b▇▇▇ such pro-ration shall be promptly recalculated by the Buyer for any part of that amount apportioned to the Buyer. The Buyer will pay Apportioned Obligations that are due and payable parties after the Closing Date upon the receipt of the next utility bills; (iii) rent payments and b▇▇▇ any common area charges or other similarly pro-rated charges due under the Seller 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 part 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 amount apportioned to the Seller. Notwithstanding 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 provision contained in this Agreement (including items customarily prorated, as mutually agreed upon by 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 limit of timeparties.

Pro-rations. The Parties agree that any Apportioned Obligations(i) At Closing, and any refund, rebate all delinquent real estate taxes or similar payment received by assessments on the Seller or by the Buyer for any Taxes that are Apportioned Obligations, Property will be apportioned between paid in full by Seller, together with all penalties and redemption charges. All unpaid non-delinquent real and personal property taxes and assessments on 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 Property assessed for the year prior to the year in which Closing occurs and payable in the year in which Closing Occurs will be paid by Seller. Real and personal property taxes and assessments assessed for the year in which Closing occurs and payable in year following the year in which Closing occurs, affecting the Property shall be prorated as the date of Closing based on the most recent tax assessment information available from the assessor’s office, with Seller being responsible for the pre-Closing tax proration amount and Purchaser being solely responsible for all taxes and assessments from the date of Closing and thereafter. Notwithstanding anything to the contrary herein, Seller shall be obligated to pay all ad valorem property taxes assessed for periods prior to the Closing Date. If the prorated amount of such Apportioned Obligations that would be payable if the relevant year or period ended ad valorem property taxes attributable to Seller on the Closing Date. (b) For Apportioned Obligations measured by Statement is less than the actual 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 assessed 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, by (B) a fraction, the numerator of which is the number of calendar days in the portion of the 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 Closing. (d) For all Apportioned Obligations not described in (a) or (b), 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or period prior to the Closing Date, and b▇▇▇ the Buyer for any part of that Seller shall pay such amount apportioned to the Buyer. applicable taxing authority no later than ten (10) days following Seller’s receipt of notice thereof, whether such notice is provided by Purchaser, the applicable taxing authority, or otherwise. (ii) The Buyer will pay Apportioned Obligations that are due and payable after parties shall transfer utility services as of the Closing Date and b▇▇▇ the Seller for any part of that amount apportioned to the SellerPurchaser and all utility fees and charges accruing prior to Closing shall be paid by Seller based on the final meter readings on the Closing Date. Notwithstanding any other provision contained in this Agreement (including This Section 12(f) shall survive 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 limit of timeClosing.

Pro-rations. The Parties agree 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 any Apportioned ObligationsSellers 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 any refund, rebate or similar payment received by Buyer is responsible for its pro-rata share (determined on a per diem basis) of the Seller or by expenses accrued on and after the Buyer for any Taxes that are Apportioned Obligations, will be apportioned between the Seller and the Buyer Effective Time except as followsprovided below: (ai) For Apportioned Obligations 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 or related to income or receipts, actual amounts billed by 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.utilities; (biii) For Apportioned Obligations measured by rent payments and any common area charges or other similarly pro-rated charges due under the amount Leases assigned to Buyer (or level 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 any item (includingthe Closing; provided, but not limited tohowever, 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 Apportioned Obligations 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 are measured the case may be; (v) liquor license fees paid by the amount any Seller or any Affiliate 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 Sellers prior to the Closing, by (B) a fraction, Effective Time to the numerator of which is the number of calendar days in 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 Straddle Period ending on the Closing Date and the denominator applicable Governmental Authority to Sellers or any Affiliate of which is the number of calendar days in the entire Straddle Period.Sellers; and (cvi) 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 Closing. (d) For all Apportioned Obligations not described in (a) or (b), 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or prior to the Closing Date, and b▇▇▇ the Buyer for any part of that amount apportioned to the Buyer. The Buyer will pay Apportioned Obligations that are due and payable after the Closing Date and b▇▇▇ the Seller for any part of that amount apportioned to the Seller. Notwithstanding any other provision contained in this Agreement (including items customarily prorated, as mutually agreed upon by 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 limit of timeparties.

Pro-rations. 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 Pro-rations shall be apportioned between the Seller and the Buyer made as follows: (a) For Apportioned Obligations Real and personal property ad valorem taxes shall be prorated as of the Closing, based upon or related actual days involved. Seller shall be responsible for all ad valorem taxes for any period prior to income or receipts, the Seller agrees to indemnify the Buyer for closing. Purchaser shall receive credit on the amount of the cash payments to be made by purchaser pursuant hereto for the pro-rated amount thereof chargeable to Seller. In connection with the pro-ration of both real and personal property ad valorem taxes, if actual tax figures for the year of closing are not available at the closing, an estimated, tentative pro-ration of taxes shall be made using tax figures for the preceding year; however, when actual taxes for the year of closing are available, a corrected pro-ration shall be made. If such Apportioned Obligations taxes for the year of Closing increase over those for the preceding year, Seller shall pay to Purchaser a pro rata portion of such increase, computed to the closing, and conversely, if such taxes for the year of closing decrease from those of the preceding year, Purchaser shall pay to Seller a pro rata portion of such decrease, computed to the closing, any such payment to be made within ten (10) days after notification by either party that would be payable if such adjustment is necessary. Seller shall, on or before the relevant year Closing, furnish to purchaser and the Title Company all information necessary to compute the pro-rations provided for in this Section. Seller shall pay all special taxes or period ended on assessments to the Closing Datedate of Closing. (b) For Apportioned Obligations measured by Seller shall be entitled to all room rentals for rooms rented for periods commencing prior to 6:00 a.m. on the amount date of the Closing. Seller shall be responsible for paying all employees up to and including the date of closing, including any accrued vacation pay. (c) Final meter readings on all utilities charged to the project shall be made as of the day preceding the closing. Seller shall arrange for and pay for final b▇▇▇▇▇▇▇ on utilities down to the day preceding closing; and Purchaser shall be responsible for utilities used on or level after the date of any item closing. (d) Purchaser shall be responsible for the payments of all operating expenses of the project attributable to periods commencing on or after Closing, and Seller shall be responsible for the payment of all operation expenses of the Project incurred for all prior periods, including, but not limited toto HIE fees and royalties, such Apportioned Obligations as are measured by Hotel/Motel taxes, wages, vacation pay, severance pay, fringe benefits and payroll taxes. An adjustment will be agreed upon and made at Closing for pre-paid expenses. (e) To the extent possible, the amount of capital or any adjustment described in this section shall be estimated and paid at the value of intangibles) closing, based upon the Seller agrees best information available 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, by (B) a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Closing Date Purchaser 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 Closing. (d) For all Apportioned Obligations not described in (a) or (b), 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or prior to the Closing Datetime, and b▇▇▇ the Buyer for any part of that amount apportioned to the Buyer. The Buyer will pay Apportioned Obligations that are due and payable after the Closing Date and b▇▇▇ 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 shall be considered a Loss, subject to any limits of minimum or maximum amounts, measurement of aggregate amount of Losses or any limit of timeadjusted as soon thereafter as may be determined with reasonable certainty.

Pro-rations. The Parties agree 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 any Apportioned ObligationsSellers 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 any refund, rebate or similar payment received by Buyer is responsible for its pro-rata share (determined on a per diem basis) of the Seller or by expenses accrued on and after the Buyer for any Taxes that are Apportioned Obligations, will be apportioned between the Seller and the Buyer Effective Time except as followsprovided below: (ai) For Apportioned Obligations 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 or related to income or receipts, actual amounts billed by 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.utilities; (biii) For Apportioned Obligations measured by rent payments and any common area charges or other similarly pro-rated charges due under the amount Leases assigned to Buyer (or level 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 any item (includingthe Closing; provided, but not limited tohowever, 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 Apportioned Obligations payments shall be excluded from the pro-rations required by this Section 2.05(e)(iv) and be paid directly by Sellers and Buyer, as are measured the case may be; (v) liquor license fees paid by the amount any Seller or any Affiliate 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 Sellers prior to the Closing, by (B) a fraction, Effective Time to the numerator of which is the number of calendar days in 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 Straddle Period ending on Management Agreement with a post-Closing expiration date and are not refunded by the Closing Date and the denominator applicable Governmental Authority to Sellers or any Affiliate of which is the number of calendar days in the entire Straddle Period.Sellers; and (cvi) 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 Closing. (d) For all Apportioned Obligations not described in (a) or (b), 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 the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. The Seller will pay Apportioned Obligations that are due and payable on or prior to the Closing Date, and b▇▇▇ the Buyer for any part of that amount apportioned to the Buyer. The Buyer will pay Apportioned Obligations that are due and payable after the Closing Date and b▇▇▇ the Seller for any part of that amount apportioned to the Seller. Notwithstanding any other provision contained in this Agreement (including items customarily prorated, as mutually agreed upon by 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 limit of timeparties.