Common use of Utilities and Contracts Clause in Contracts

Utilities and Contracts. Seller shall use commercially reasonable efforts to maintain each of the Subject Restaurant’s utility accounts in effect following the Closing Date through the date that is the last day of the month immediately following the month of the Closing Date (the “Utility Termination Date”). By way of example only, if the Closing Date is May 20, 2012, the Utility Termination Date would be June 30, 2012. Prior to the Utility Termination Date, the Seller shall provide such reasonable cooperation, as requested by Buyer, to establish new utility accounts at the Subject Restaurants in the name of the Buyer. For the avoidance of doubt, in no event will Seller be required to transfer any utility accounts and/or related deposits to Buyer. During the period from the Closing Date through the Utility Termination Date, upon receipt of any invoices with respect to the Seller’s utility accounts at the Subject Restaurants, Buyer shall promptly reimburse Seller its pro-rata portion of such invoice (calculated by reference to the number of days following the Closing Date divided by the total number of days covered by such invoice). Buyer and Parent shall indemnify Seller for any Losses incurred by the Seller Indemnitees on account of any amounts owing with respect to such utility accounts relating to fees and expenses incurred thereunder following the Closing Date.” (e) The Purchase Agreement is hereby amended by adding the following to the end of Section 8.1: (a) Within twenty (20) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant in Indiana (collectively, the “IN MOLS,” and each, an “IN MOL”) and following approval of the IN MOLS by Buyer and Seller, Seller shall cause within thirty (30) days of the Closing Date, each IN MOL to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed), and Buyer shall have the right to record the IN MOLS; (b) within fifty (50) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant not located in Indiana (collectively, the “Other MOLS”) and following approval of the Other MOLS by Buyer and Seller, Seller shall cause within sixty (60) days of the Closing Date, each of the Other MOLS to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed); and (c) within twenty (20) days following the Closing Date, the Seller and Buyer shall re-execute and acknowledge any of the Seller Leases not previously acknowledged to the extent that such acknowledgment is required by applicable Law. Seller agrees to reimburse Buyer fifty percent (50%) of the costs of recording any of the IN MOLS and any transfer taxes required to be paid in connection therewith, such reimbursement to be within fifteen (15) days of delivery by Buyer to Seller of an invoice setting forth such amounts.” (f) Each of (i) the Seller’s Disclosure Schedules and (ii) each Transaction Document (and any schedules and exhibits thereto), as applicable, is hereby amended so that any reference to the address of restaurant # 2419 is updated to be “▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.” (g) Section 6.16 of the Seller’s Disclosure Schedules is hereby amended and restated to delete the following reference in its entirety and replace it with the word “None”: “The Franchisee Participation Agreement by and between the Coca-Cola Company and Seller with respect to each of the Subject Restaurants constitute all of the Assumed Contracts under the Purchase Agreement.”

Utilities and Contracts. Purchaser and Seller shall use commercially reasonable efforts hereby acknowledge and agree that the amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills and all other operating expenses relating to maintain each of the Subject Restaurant’s utility accounts in effect following Property and allocable to the period prior to the Closing Date through shall be determined and paid by Seller before Closing, if possible, or shall be paid thereafter by Seller or adjusted between Purchaser and Seller immediately after the date that is the last day same have been determined. Seller shall attempt to have all utility meters read as of the month immediately following Closing Date. Purchaser shall cause all utility services to be placed in Purchaser’s name, or the month name of the tenants of the Property, as of the Closing Date. If permitted by the applicable utilities, all utility deposits in Seller’s name shall be assigned to Purchaser as of the Closing Date (the “Utility Termination Date”). By way of example only, if the Closing Date is May 20, 2012, the Utility Termination Date would be June 30, 2012. Prior to the Utility Termination Date, the and Seller shall provide such reasonable cooperationreceive a credit therefore at Closing. Amounts payable and/or paid pursuant to all service, as requested by Buyerequipment, to establish new utility accounts at supply and maintenance contracts regarding the Subject Restaurants in the name of the Buyer. For the avoidance of doubt, in no event will Seller be required to transfer any utility accounts and/or related deposits to Buyer. During the period from the Closing Date through the Utility Termination Date, upon receipt of any invoices with respect to the Seller’s utility accounts at the Subject Restaurants, Buyer shall promptly reimburse Seller its pro-rata portion of such invoice (calculated by reference to the number of days following the Closing Date divided by the total number of days covered by such invoice). Buyer and Parent shall indemnify Seller for any Losses incurred by the Seller Indemnitees on account of any amounts owing with respect to such utility accounts relating to fees and expenses incurred thereunder following the Closing Date.” (e) The Purchase Agreement is hereby amended by adding the following to the end of Section 8.1: (a) Within twenty (20) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant in Indiana Property (collectively, the “IN MOLS,” and eachContracts”), an “IN MOL”) and following approval if assumed by Purchaser at Closing, shall be apportioned as of Closing. If the IN MOLS by Buyer and SellerContracts are assigned to Purchaser, Seller shall cause within be responsible for all matters attributable to the period prior to Closing and indemnify Purchaser for such matters and Purchaser shall be responsible for all matters attributable to the period following Closing and shall indemnify Seller for such matters. The Contracts, shall, if requested by Purchaser upon not less than thirty (30) business days prior written notice to Seller prior to the Closing Date, be terminated by Seller effective as of the Closing. All Contracts not terminated shall be assigned by Seller to Purchaser and assumed by Purchaser at Closing. Those two (2) certain Management Agreements entered into between Seller and H▇▇▇▇ Mountain Industries Inc. each dated May 8, 2003 shall be terminated by Seller effective as of the Closing Date, each IN MOL to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed), and Buyer shall have the right to record the IN MOLS; (b) within fifty (50) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant not located in Indiana (collectively, the “Other MOLS”) and following approval of the Other MOLS by Buyer and Seller, Seller shall cause within sixty (60) days of the Closing Date, each of the Other MOLS to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed); and (c) within twenty (20) days following the Closing Date, the Seller and Buyer shall re-execute and acknowledge any of the Seller Leases not previously acknowledged to the extent that such acknowledgment is required by applicable Law. Seller agrees to reimburse Buyer fifty percent (50%) of the costs of recording any of the IN MOLS and any transfer taxes required to be paid in connection therewith, such reimbursement to be within fifteen (15) days of delivery by Buyer to Seller of an invoice setting forth such amounts.” (f) Each of (i) the Seller’s Disclosure Schedules and (ii) each Transaction Document (and any schedules and exhibits thereto), as applicable, is hereby amended so that any reference to the address of restaurant # 2419 is updated to be “▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.” (g) Section 6.16 of the Seller’s Disclosure Schedules is hereby amended and restated to delete the following reference in its entirety and replace it with the word “None”: “The Franchisee Participation Agreement by and between the Coca-Cola Company and Seller with respect to each of the Subject Restaurants constitute all of the Assumed Contracts under the Purchase Agreement.”

Utilities and Contracts. Purchaser and Seller shall use commercially reasonable efforts hereby acknowledge and agree that the amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills and all other operating expenses relating to maintain each of the Subject Restaurant’s utility accounts in effect following Property and allocable to the period prior to the Closing Date through shall be determined and paid by Seller before Closing, if possible, or shall be paid thereafter by Seller or adjusted between Purchaser and Seller immediately after the date that is the last day same have been determined. Seller shall attempt to have all utility meters read as of the month immediately following Closing Date. Purchaser shall cause all utility services to be placed in Purchaser’s name, or the month name of the tenants of the Property, as of the Closing Date. If permitted by the applicable utilities, all utility deposits in Seller’s name shall be assigned to Purchaser as of the Closing Date (the “Utility Termination Date”). By way of example only, if the Closing Date is May 20, 2012, the Utility Termination Date would be June 30, 2012. Prior to the Utility Termination Date, the and Seller shall provide such reasonable cooperationreceive a credit therefore at Closing. Amounts payable and/or paid pursuant to all service, as requested by Buyerequipment, to establish new utility accounts at supply and maintenance contracts regarding the Subject Restaurants in the name of the Buyer. For the avoidance of doubt, in no event will Seller be required to transfer any utility accounts and/or related deposits to Buyer. During the period from the Closing Date through the Utility Termination Date, upon receipt of any invoices with respect to the Seller’s utility accounts at the Subject Restaurants, Buyer shall promptly reimburse Seller its pro-rata portion of such invoice (calculated by reference to the number of days following the Closing Date divided by the total number of days covered by such invoice). Buyer and Parent shall indemnify Seller for any Losses incurred by the Seller Indemnitees on account of any amounts owing with respect to such utility accounts relating to fees and expenses incurred thereunder following the Closing Date.” (e) The Purchase Agreement is hereby amended by adding the following to the end of Section 8.1: (a) Within twenty (20) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant in Indiana Property (collectively, the “IN MOLS,” and eachContracts”), an “IN MOL”) and following approval if assumed by Purchaser at Closing, shall be apportioned as of Closing. If the IN MOLS by Buyer and SellerContracts are assigned to Purchaser, Seller shall cause within be responsible for all matters attributable to the period prior to Closing and indemnify Purchaser for such matters and Purchaser shall be responsible for all matters attributable to the period following Closing and shall indemnify Seller for such matters. The Contracts, shall, if requested by Purchaser upon not less than thirty (30) business days prior written notice to Seller prior to the Closing Date, be terminated by Seller effective as of the Closing. All Contracts not terminated shall be assigned by Seller to Purchaser and assumed by Purchaser at Closing. The Management Agreement entered into between Seller and H▇▇▇▇ Mountain Industries, Inc. shall be terminated by Seller effective as of the Closing Date, each IN MOL to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed), and Buyer shall have the right to record the IN MOLS; (b) within fifty (50) days following the Closing Date, the Seller shall prepare and deliver to Buyer for review, comment and approval the proposed Memorandum of Lease for each Subject Restaurant not located in Indiana (collectively, the “Other MOLS”) and following approval of the Other MOLS by Buyer and Seller, Seller shall cause within sixty (60) days of the Closing Date, each of the Other MOLS to be duly executed and acknowledged and the original delivered to Buyer (or Buyer’s counsel, if so directed); and (c) within twenty (20) days following the Closing Date, the Seller and Buyer shall re-execute and acknowledge any of the Seller Leases not previously acknowledged to the extent that such acknowledgment is required by applicable Law. Seller agrees to reimburse Buyer fifty percent (50%) of the costs of recording any of the IN MOLS and any transfer taxes required to be paid in connection therewith, such reimbursement to be within fifteen (15) days of delivery by Buyer to Seller of an invoice setting forth such amounts.” (f) Each of (i) the Seller’s Disclosure Schedules and (ii) each Transaction Document (and any schedules and exhibits thereto), as applicable, is hereby amended so that any reference to the address of restaurant # 2419 is updated to be “▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.” (g) Section 6.16 of the Seller’s Disclosure Schedules is hereby amended and restated to delete the following reference in its entirety and replace it with the word “None”: “The Franchisee Participation Agreement by and between the Coca-Cola Company and Seller with respect to each of the Subject Restaurants constitute all of the Assumed Contracts under the Purchase Agreement.”