Prorations; Credits and Adjustments. 4.2.1 All assets and liabilities of the Hotel, determined in accordance with the Uniform System (provided that all non-Hotel assets and liabilities, if any, shall be determined in accordance with generally accepted accounting principles), shall be prorated (whether or not Xxxxx or the Hotel shall have been invoiced therefor prior to the Cut-Off Time) as of 12:01 a.m. Eastern Daylight Time on the Closing Date (the “Cut-Off Time”). In connection with the foregoing: (a) Xxxxx has prepared a proforma of the accounting for the transaction that reflects how items subject to proration will be accounted for (the “Draft Closing Statement”). The Draft Closing Statement reflects Xxxxx’x good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing, a copy of which is attached hereto as Exhibit “G”; and (b) Not later than five (5) business days prior to the Closing, Xxxxx shall update the Draft Closing Statement and cause a preliminary statement of prorations and adjustments required under this Section 4.2 or under any other provisions of this Agreement to be prepared and delivered to CWI for CWI’s review, with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Preliminary Closing Statement”); and (c) On the day prior to Closing, CWI and Xxxxx will conduct inventories, examinations and audits of the Property as may be necessary to verify and/or make revisions to the Preliminary Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, CWI and Xxxxx will make all final adjustments necessitated by such nights’ operations and prepare a final statement of prorations and adjustments required under this Section 4.2 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). All prorations reflected on the Draft Closing Statement and the Preliminary Closing Statement shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation. 4.2.2 The following shall be prorated as of the Cut-Off Time: (a) expenses and other amounts payable under any Contracts; (b) costs and expenses related to construction, capital improvement and other similar work performed at the Hotel prior to the Cut-Off Time; (c) utility charges (including, without limitation, charges for phone service, cable television, gas, water, sewer and electricity); (d) installments of municipal and other governmental improvement liens and special assessments; (e) periodic license and permit fees; (f) revenues and expenses from any Hotel guest rooms and facilities (other than those set forth in clause (h) below) occupied on the evening immediately preceding the Cut-Off Time, including any Sales Taxes, room taxes and other taxes charged to guests in such rooms and all parking charges allocable to such rooms with respect to the evening immediately preceding the Cut-Off Time, shall be divided 50:50 between Xxxxx and CWI (where a complete meeting package (“CMP”) guest is staying on a CMP rate, the food and beverage revenues shall be allocated based on whether the applicable meal or service occurred before or after the Cut-Off Time); provided, however, that to the extent that either Xxxxx or Hotel Manager, as applicable, records in the ordinary course the times at which food and beverage sales, telephone, facsimile or data communication, in-room movie, laundry, and other services are ordered by guests, then the same shall be prorated when orders for the same were received. All revenues from restaurants and other service operations conducted at the Hotel shall be prorated based on whether the same accrued before or after the Cut-Off Time as described in the preceding sentence. The revenues referred to in this clause (g) are referred to collectively as “guest revenues”; (g) revenues and expenses from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in the Hotel, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be prorated based on when the function took place. The revenues referred to in this clause (h) are referred to collectively as “conference revenues”; (h) the Rooms Ledger; (i) expenses for food and beverages and reserve stock of linens, towels, paper goods, soaps, cleaning and other supplies delivered prior to midnight; (j) prepaid rents and prepaid room receipts and deposits, function receipts and deposits and other reservation receipts and deposits (including the amount of unredeemed gift certificates, if any); (k) retail sales (including any tax on the sale of any Personal Property effected pursuant to this Agreement), occupancy and liquor taxes and like impositions accrued as of the Cut-Off Time; (l) revenue relating to the common areas of the Hotel; (m) revenue (after the settlement of applicable commissions and/or costs) relating to vending machines in the Hotel; (n) all till money, cash-on-hand, and all sums in house banks for the Hotel, in which case all right, title and interest to the till money, cash-on-hand and house banks shall be assigned and conveyed by Xxxxx to CWI and Xxxxx shall receive a credit equal to the amount thereof, provided that, if Xxxxx and CWI cannot mutually agree upon the amount of the till money, cash-on-hand and house banks, the provisions of this clause (o) shall be inapplicable and title to the till money, cash-on-hand and house banks shall remain with Xxxxx; and (o) such other items as are usually and customarily prorated between buyers and sellers of hotel properties in the area where the Hotel is located.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Prorations; Credits and Adjustments. 4.2.1 All assets and liabilities of the HotelResort, determined in accordance with the Uniform System (provided that all non-Hotel Resort assets and liabilities, if any, shall be determined in accordance with generally accepted accounting principles), shall be prorated (whether or not Xxxxx Seller or the Hotel Resort shall have been invoiced therefor prior to the Cut-Off Time) as of 12:01 12:00 a.m. Eastern Daylight Time on the date of Closing Date (the “Cut-Off Time”). In connection with the foregoing:
(a) Xxxxx has prepared Not later than ten (10) Business Days prior to the then-scheduled date of Closing, Seller shall prepare a proforma of the accounting for the transaction that reflects how items subject to proration and/or adjustment will be accounted for (the “Draft Closing Statement”). The Draft Closing Statement reflects Xxxxx’x good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing, a copy of which is attached hereto as Exhibit “G”; and
(b) Not later than five (5) business days prior to the Closing, Xxxxx shall update the Draft Closing Statement and cause a preliminary statement of prorations and adjustments required under this Section 4.2 or under any other provisions of this Agreement to (the “Preliminary Closing Statement”), a copy of which shall be prepared and delivered to CWI Purchaser for CWIPurchaser’s review, with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Preliminary Closing Statement”)thereto; and
(cb) On the day prior to Closing, CWI Purchaser and Xxxxx Seller will conduct inventories, examinations and audits of the Property as may be necessary to verify and/or make revisions to the Preliminary Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, CWI Purchaser and Xxxxx Seller will make all final adjustments necessitated by such nights’ night’s operations and prepare a final statement of prorations and adjustments required under this Section 4.2 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). .
(c) All prorations reflected on the Draft Preliminary Closing Statement and on the Preliminary Closing Statement shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation.
(d) No prorations shall be made in relation to insurance premiums.
4.2.2 The following shall be prorated as of the Cut-Off Time:
(a) expenses and other amounts payable under any Contracts;, Equipment Leases, the Rental Management Agreements, and the Space Leases; provided that (i) Purchaser shall receive a credit in an amount equal to all tenant security deposits under the Space Leases, if any, and (ii) rents and other amounts payable under the Space Leases which are delinquent as of the Cut-Off Time shall not be prorated as of the Cut-Off Time and shall be allocated as follows:
(i) To the extent that Purchaser receives rents or other payments payable under the Space Leases on or after the Closing Date, such payments shall be applied first towards the payment in full of all rents and other amounts due to Purchaser with respect to periods following the Cut-Off Time, with the balance applied to delinquent rents or other amounts due to Seller for the period prior to the Cut-Off Time, with Seller’s share thereof (less amounts for reasonable out-of-pocket costs of collection) being promptly delivered to Seller by Purchaser. Purchaser agrees to attempt to collect any such delinquent rents after the Closing as part of its collection process in the ordinary course, but shall have no obligation to institute suit against any delinquent tenant. The provisions of this Section 4.2.2(a)(i) shall survive the Closing.
(ii) With respect to any Space Leases which provide for the payment of percentage rent by the tenant thereunder, the parties shall use good faith efforts to prorate such percentage rent as of the Closing and, within forty-five (45) days after Purchaser completes the annual reconciliation of such percentage rent payments with each such tenant, the parties agree to re-prorate percentage rent based on the actual percentage rent paid by such tenant, and the party in whose favor such original proration was made shall refund such difference to the other party promptly thereafter. The provisions of this Section 4.2.2(a)(ii) shall survive the Closing.
(b) costs and expenses related to construction, capital improvement and other similar work performed at the Hotel Resort prior to the Cut-Off Time;
(c) subject to Section 4.3 below, utility charges (including, without limitation, charges for phone service, cable television, gas, water, sewer and electricity);
(d) installments of municipal and other governmental improvement liens and special assessments;
(e) periodic license and permit Permit fees;
(f) revenues and expenses from any Hotel guest rooms rooms, Villas (to the extent of Seller’s interest therein) and other Resort facilities (other than those set forth in clause (hg) below) occupied on the evening immediately preceding the Cut-Off Time, including any Sales Taxes, room taxes and other taxes charged to guests in such rooms rooms, or Villas, all use fees, maintenance fees, owner fees, service fees, housekeeping fees and any similar fees assessed or charged in connection with the Rental Program, all parking charges, sales from mini-bars, in-room food and beverage, telephone, facsimile and data communications, in-room movie, laundry, and other service charges allocable to such rooms or Villas and all other revenues otherwise arising from Villa Owners with respect to the evening immediately preceding the Cut-Off Time, shall be divided 50:50 between Xxxxx Seller and CWI Purchaser (where a complete meeting package (“CMP”) guest is staying on a CMP rate, the food and beverage revenues shall be allocated based on whether the applicable meal or service occurred before or after the Cut-Off Time); provided, however, that to the extent that either Xxxxx Seller or Hotel Resort Manager, as applicable, records in the ordinary course the times at which food and beverage sales, telephone, facsimile or data communication, in-room movie, laundry, and other services are ordered by guests, then the same shall be prorated when orders for the same were received. All revenues from restaurants and other service operations conducted at the Hotel Resort shall be prorated based on whether the same accrued before or after the Cut-Off Time as described in the preceding sentence. The revenues referred to in this clause (gf) are referred to collectively as “guest revenues”;. Guest revenues shall be calculated after first deducting applicable discounts, credit card charges and travel agent commissions, and after writing down to zero all guest ledger charges (i) that are disputed by the guest, (ii) that are for personnel of Seller, the Resort Manager or their Affiliates, (iii) that are complimentary or (iv) that are in-house charges.
(g) revenues and expenses from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in at the HotelResort, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be prorated based on when the function took place. The revenues referred to in this clause (hg) are referred to collectively as “conference revenues”;
(h) the Rooms Ledger;
(i) expenses for food and beverages and reserve stock of linens, towels, paper goods, soaps, cleaning and other supplies delivered prior to midnight;
(j) prepaid rents and prepaid room receipts and deposits, function receipts and deposits and other reservation receipts and deposits (including the amount of unredeemed gift certificates, if any)deposits;
(ki) accrued but unpaid vested and unvested salary, wages and bonuses, accrued but unpaid health and welfare benefits, accrued but unpaid vested and unvested vacation, sick and personal days, accrued but unpaid vested and unvested fringe benefits, accrued but unpaid employee severance payments, and other accrued but unpaid vested and unvested compensation and fringe benefits;
(j) retail sales (including any tax on the sale of any Personal Property effected pursuant to this Agreement), occupancy and liquor taxes and like impositions accrued as of the Cut-Off Time;
(lk) revenue relating to the common areas of the HotelResort;
(ml) revenue (after the settlement of applicable commissions and/or costs) relating to vending machines in at the HotelResort;
(nm) all till money, cash-on-hand, and all sums in house banks for the HotelResort, in which case all right, title and interest to the till money, cash-on-hand and house banks shall be assigned and conveyed by Xxxxx Seller to CWI Purchaser and Xxxxx Seller shall receive a credit equal to the amount thereof, provided that, if Xxxxx Seller and CWI Purchaser cannot mutually agree upon the amount of the till money, cash-on-hand and house banks, the provisions of this clause (om) shall be inapplicable and title to the till money, cash-on-hand and house banks shall remain with XxxxxSeller;
(n) all assessments by the Associations which are payable during the calendar month in which the Closing occurs shall be adjusted and prorated as of the Cut-Off Time on a cash basis, regardless of the month for which such amounts are assessed;
(o) gift certificates, if any, set forth on Schedule 2.2.2, as the same may be attached hereto by the Parties within three (3) Business Days after the Effective Date in accordance with Section 9.20 and updated by Seller at Closing; provided that Purchaser shall receive a credit against the Purchase Price at the Closing in an amount equal to the value of any gift certificates which remain outstanding as of the Closing and further provided that Purchaser shall not receive a credit for any complimentary rooms (or room rates below average rack rates) granted to conventions and other meeting groups in the ordinary course of business by Seller, as set forth on Schedule 2.2.2, as the same may be attached hereto by the Parties within three (3) Business Days after the Effective Date in accordance with Section 9.20 and updated by Seller at Closing;
(p) any pre-paid advertising; and
(oq) such other items as are usually and customarily prorated between buyers and sellers of hotel or resort properties in the area where the Hotel Resort is located.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Prorations; Credits and Adjustments. 4.2.1 All Subject to the cooperation and approval of Existing Manager, Receiver and OWB (to the extent such cooperation and approval is required), all assets and liabilities of the Hotel, determined in accordance with the Uniform System (provided that all non-Hotel assets and liabilities, if any, shall be determined in accordance with generally accepted accounting principles), shall be prorated (whether or not Xxxxx Pacific or the Hotel shall have been invoiced therefor prior to the Cut-Off Time) as of 12:01 a.m. Eastern Pacific Daylight Time on the Closing Date (or the Outside Closing Date, as applicable) (the “Cut-Off Time”). In connection with the foregoing:
(a) Xxxxx has , the Parties shall have prepared a proforma of the accounting for the transaction that reflects how items subject to proration will be accounted for by crediting or debiting appropriate accounts on the balance sheet of Pacific or the Venture either pre or post Closing, respectively (the “Draft Closing Statement”). The Draft Closing Statement reflects Xxxxx’x the Parties’ good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing, a copy of which is attached hereto as Exhibit “GD”; and
(b) Not later than five (5) business days prior to the Closing, Xxxxx shall update the Draft Closing Statement and cause a preliminary statement of prorations and adjustments required under this Section 4.2 or under any other provisions of this Agreement to be prepared and delivered to CWI for CWI’s review, with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Preliminary Closing Statement”); and
(c) . On the day prior to Closing, CWI and Xxxxx Pacific will conduct inventories, examinations and audits of the Property as may be necessary to verify and/or make revisions to the Preliminary Draft Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, CWI and Xxxxx Pacific will make all final adjustments necessitated by such nights’ operations and prepare a final statement of prorations and adjustments required under this Section 4.2 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). All prorations reflected on the Draft Closing Statement and the Preliminary Closing Statement shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation.
4.2.2 The Subject to the cooperation and approval of Existing Manager, Receiver and OWB (to the extent such cooperation and approval is required), the following shall be prorated as of the Cut-Off Time:
(a) Taxes (except property taxes which are to be reimbursed to OWB) accrued as of the Cut-Off Time;
(b) expenses and other amounts payable under any Contractsservice contracts or agreements;
(bc) costs and expenses related to construction, capital improvement and other similar work performed at the Hotel prior to the Cut-Off Time;
(cd) utility charges (including, without limitation, charges for phone service, cable television, gas, water, sewer and electricity);
(de) installments of municipal and other governmental improvement liens and special assessments;
(ef) periodic license and permit fees;
(fg) revenues and expenses from any Hotel guest rooms and facilities (other than those set forth in clause (h) below) occupied on the evening immediately preceding the Cut-Off Time, including any Sales Taxes, room taxes and other taxes charged to guests in such rooms and rooms, all parking charges, sales from mini-bars, in-room food and beverage, telephone, facsimile and data communications, in-room movie, laundry, and other service charges allocable to such rooms with respect to the evening immediately preceding the Cut-Off Time, shall be divided 50:50 between Xxxxx OWB and CWI the Venture (where a complete meeting package (“CMP”) guest is staying on a CMP rate, the food and beverage revenues shall be allocated based on whether the applicable meal or service occurred before or after the Cut-Off Time); provided, however, that to the extent that either Xxxxx Pacific or Hotel Existing Manager, as applicable, records in the ordinary course the times at which food and beverage sales, telephone, facsimile or data communication, in-room movie, laundry, and other services are ordered by guests, then the same shall be prorated when orders for the same were received. All revenues from restaurants and other service operations conducted at the Hotel shall be prorated based on whether the same accrued before or after the Cut-Off Time as described in the preceding sentence. The revenues referred to in this clause (g) are referred to collectively as “guest revenues”;
(gh) revenues and expenses from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in the Hotel, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be prorated based on when the function took place. The revenues referred to in this clause (h) are referred to collectively as “conference revenues”;
(hi) the Rooms Ledger;
(ij) expenses for food and beverages and reserve stock of linens, towels, paper goods, soaps, cleaning and other supplies delivered prior to midnightsupplies;
(jk) prepaid rents and prepaid room receipts and deposits, function receipts and deposits and other reservation receipts and deposits (including the amount of unredeemed gift certificates, if any)) which are not held by and retained by the Venture as of the Cut-Off Time;
(kl) accrued but unpaid vested and unvested salary, wages and bonuses, accrued but unpaid health and welfare benefits, accrued but unpaid vested and unvested vacation, sick and personal days, accrued but unpaid vested and unvested fringe benefits, accrued but unpaid employee severance payments, and other accrued but unpaid vested and unvested compensation and fringe benefits;
(m) retail sales (including any tax on the sale of any Personal Property effected pursuant to this Agreementpersonal property), occupancy and liquor taxes and like impositions accrued as of the Cut-Off Time;
(ln) revenue relating to the common areas of the Hotel;
(mo) revenue (after the settlement of applicable commissions and/or costs) relating to vending machines in the Hotel;
(n) all till money, cash-on-hand, and all sums in house banks for the Hotel, in which case all right, title and interest to the till money, cash-on-hand and house banks shall be assigned and conveyed by Xxxxx to CWI and Xxxxx shall receive a credit equal to the amount thereof, provided that, if Xxxxx and CWI cannot mutually agree upon the amount of the till money, cash-on-hand and house banks, the provisions of this clause (o) shall be inapplicable and title to the till money, cash-on-hand and house banks shall remain with Xxxxx; and
(op) such other items as are usually and customarily prorated between buyers and sellers of hotel properties in the area where the Hotel is located.
Appears in 1 contract
Samples: Contribution Agreement (Carey Watermark Investors Inc)
Prorations; Credits and Adjustments. 4.2.1 All assets and liabilities of the Hotel, determined in accordance with the Uniform System (provided that all non-Hotel assets and liabilities, if any, shall be determined in accordance with generally accepted accounting principles), shall be prorated (whether or not Xxxxx or the Hotel shall have been invoiced therefor prior to the Cut-Off Time) as of 12:01 a.m. Eastern Daylight Time on the Closing Date (the “Cut-Off Time”). In connection with the foregoing:
(a) Xxxxx has prepared a proforma of the accounting for the transaction that reflects how items subject to proration will be accounted for (the “Draft Closing Statement”). The Draft Closing Statement reflects Xxxxx’x good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing, a copy of which is attached hereto as Exhibit “G”; and
(b) Not later than five (5) business days prior to the Closing, Xxxxx shall update the Draft Closing Statement and cause a preliminary statement of prorations and adjustments required under this Section 4.2 or under any other provisions of this Agreement to be prepared and delivered to CWI for CWI’s review, with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Preliminary Closing Statement”); and
(c) On the day prior to Closing, CWI and Xxxxx will conduct inventories, examinations and audits of the Property as may be necessary to verify and/or make revisions to the Preliminary Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, CWI and Xxxxx will make all final adjustments necessitated by such nights’ operations and prepare a final statement of prorations and adjustments required under this Section 4.2 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). All prorations reflected on the Draft Closing Statement and the Preliminary Closing Statement shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation.
4.2.2 The following items shall be prorated as of the Cut-Off TimeClosing Date:
(ai) expenses Current real estate and personal property taxes and any other amounts payable under any Contractswater, sewer or other municipal use or improvement tax, charge or other assessment affecting the Property, in accordance with the custom of the Bar in the County in which the Property is located and Buyer hereby agrees to assume all non-delinquent assessments affecting the Property whether special or general;
(bii) costs and expenses related to constructionWater, capital improvement electricity, gas and other similar work performed at utilities and services shall be prorated based upon the Hotel last reading of meters prior to the Cut-Off TimeClosing. Seller shall endeavor to obtain meter readings on the date before the Closing and, if such readings are obtained, there shall be no proration of such items. Seller shall pay at Closing the bills therefor for the period ending on the day preceding the Closing Date, and Buyer shall pay the bills therefor for the bills subsequent thereto. If the utility company will not issue separate bills, Buyer shall receive a credit against the purchase price for Seller’s portion and will thus assume and pay the entire xxxx prior to delinquency after Closing. If Seller has paid any utilities no more than 30 days in advance in the ordinary course of business, then Buyer shall be charged its portion of such payment at Closing. Utility deposits shall not be subject to proration, rather, Seller shall be entitled to refunds of any deposits it has made, and Buyer shall be responsible for posting its own deposits;
(ciii) utility charges Rents – as the Property is vacant, no rents will be prorated;
(iv) Fuel and other supplies, if any, on hand and paid for, at the then current price therefor;
(v) Charges and expenses, whether current or prepaid, under the Property Documents then in effect; and
(vi) All other items of revenue and expense which, by custom and practice, are prorated between sellers and purchasers of real property similar in kind to the Property, including, without limitation, the Operating Contracts, which shall be prorated on a per diem basis.
(b) Seller shall, to the extent required in connection with the recording of the Deed, pay all conveyance taxes imposed by the Commonwealth. In addition, Seller shall, on the Closing Date, give to Buyer a credit against the Purchase Price in an amount equal to all contributions and revenues, if any, whether in the form of rent escalations or adjustments or otherwise, then paid by tenants and occupants of the Property and intended to reimburse or compensate the landlord for taxes and operating expenses that are the responsibility of Buyer pursuant to the prorations described in subparagraph (a) above, to the extent accrued for and not yet applied to the payment of such taxes and operating expenses.
(c) If the amount of any tax, charge or assessment is undetermined on the Closing Date, the last determined tax, charge or assessment shall be used for the purpose of the proration described in subparagraph (a) above, with a reapportionment as soon as the new rate is determined. In the event that, after the Closing Date, any of such taxes, charges or assessments shall be reduced by abatement, the amount of such abatement, less the reasonable cost of obtaining the same, shall be apportioned between the parties, provided that neither party shall be obligated to institute or prosecute proceedings for phone servicean abatement, cable television, gas, water, sewer unless otherwise provided herein. The provisions of this subparagraph shall survive the closing and electricity);the delivery of the Deed.
(d) installments In the absence of municipal error or omission, all prorations, adjustments and other governmental improvement liens credits made and special assessments;determined as herein provided shall be final as of the Closing Date, unless otherwise specified herein. If, subsequent to the Closing Date, an error or omission in the determination or computation of any of the prorations, adjustments and credits shall be discovered, then, immediately upon discovery thereof, the parties hereto shall make the appropriate adjustments required to correct such error or omission. The provisions of this subparagraph shall survive the closing and the delivery of the Deed.
(e) periodic license Each party shall pay all its own expenses incurred in connection with this Agreement and permit fees;
(f) revenues and expenses from any Hotel guest rooms and facilities (other than those set forth in clause (h) below) occupied on the evening immediately preceding the Cut-Off Timetransactions contemplated hereby, including any Sales Taxesincluding, room taxes and other taxes charged to guests in such rooms and all parking charges allocable to such rooms with respect to the evening immediately preceding the Cut-Off Timewithout limitation, shall be divided 50:50 between Xxxxx and CWI (where a complete meeting package (“CMP”) guest is staying on a CMP rate, the food and beverage revenues shall be allocated based on whether the applicable meal or service occurred before or after the Cut-Off Time); provided, however, that to the extent that either Xxxxx or Hotel Manager, as applicable, records in the ordinary course the times at which food and beverage sales, telephone, facsimile or data communication, in-room movie, laundry, and other services are ordered by guests, then the same shall be prorated when orders for the same were received. All revenues from restaurants and other service operations conducted at the Hotel shall be prorated based on whether the same accrued before or after the Cut-Off Time as described in the preceding sentence. The revenues referred to in this clause (g) are referred to collectively as “guest revenues”;
(g) revenues and expenses from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in the Hotel, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be prorated based on when the function took place. The revenues referred to in this clause (h) are referred to collectively as “conference revenues”;
(h) the Rooms Ledger;
(i) all costs and expenses for food stated herein to be borne by a party, and beverages and reserve stock (ii) all of linenstheir respective accounting, towelslegal, paper goods, soaps, cleaning appraisal and other supplies delivered prior costs and fees. Buyer, in addition to midnight;
its other expenses, shall pay at Closing, (j1) prepaid rents all recording charges incident to the recording of the Deed to the Real Property; (2) the premium for Buyer’s Title Insurance policy, and prepaid room receipts and deposits(3) one-half of the escrow fee of the Escrow Agent, function receipts and deposits and which in no event shall exceed $500.00. Seller, in addition to its other reservation receipts and deposits (including expenses, shall pay at Closing, all recording charges incident to the amount of unredeemed gift certificates, if any);
(k) retail sales (including any tax on the sale recording of any Personal Property effected pursuant instruments to this Agreement), occupancy discharge or remove encumbrances not approved (or deemed approved) by Buyer and liquor taxes and like impositions accrued as one-half of the Cut-Off Time;
(l) revenue relating to the common areas escrow fee of the Hotel;
(m) revenue (after the settlement of applicable commissions and/or costs) relating to vending machines in the Hotel;
(n) all till money, cash-on-hand, and all sums in house banks for the Hotel, in which case all right, title and interest to the till money, cash-on-hand and house banks shall be assigned and conveyed by Xxxxx to CWI and Xxxxx shall receive a credit equal to the amount thereof, provided that, if Xxxxx and CWI cannot mutually agree upon the amount of the till money, cash-on-hand and house banks, the provisions of this clause (o) shall be inapplicable and title to the till money, cash-on-hand and house banks shall remain with Xxxxx; and
(o) such other items as are usually and customarily prorated between buyers and sellers of hotel properties in the area where the Hotel is locatedEscrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Seachange International Inc)
Prorations; Credits and Adjustments. 4.2.1 All assets and liabilities of the Hotel, determined in accordance with the Uniform System (provided that all non-Hotel assets and liabilities, if any, shall be determined in accordance with generally accepted accounting principles), shall be prorated (whether or not Xxxxx Seller or the Hotel shall have been invoiced therefor prior to the Cut-Off Time) as of 12:01 a.m. Eastern Daylight Time on the Closing Date (the “Cut-Off Time”). In connection with the foregoing:
(a) Xxxxx has prepared Not later than ten (10) days prior to the Closing Date, Seller shall deliver to CWI for CWI’s review a proforma pro forma of the accounting for the transaction that reflects how items subject to proration will be accounted for (the “Draft Preliminary Closing Statement”). The Draft Preliminary Closing Statement reflects Xxxxx’x shall reflect Seller’s good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing, a copy of which is attached hereto as Exhibit “G”; and
(b) Not later than five (5) business days prior to the Closing, Xxxxx shall update the Draft Closing Statement and cause a preliminary statement of prorations and adjustments required under this Section 4.2 or under any other provisions of this Agreement to be prepared and delivered to CWI for CWI’s review, with shall include such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Preliminary Closing Statement”)thereto; and
(cb) On the day prior to Closing, CWI and Xxxxx Seller will conduct inventories, examinations and audits of the Property as may be necessary to verify and/or make revisions to the Preliminary Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, CWI and Xxxxx Seller will make all final adjustments necessitated by such nights’ operations and prepare a final statement of prorations and adjustments required under this Section 4.2 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). All prorations reflected on the Draft Closing Statement and the Preliminary Closing Statement shall be made on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation.
4.2.2 The following shall be prorated as of the Cut-Off Time:
(a) expenses and other amounts payable under any Contracts;
(b) costs and expenses related to construction, capital improvement and other similar work performed at the Hotel prior to Taxes accrued as of the Cut-Off Time;
(b) expenses and other amounts payable under the Operating Agreements, Equipment Leases, Leases, Parking Lease and any other service contracts or agreements;
(c) subject to Section 4.3 below, utility charges (including, without limitation, charges for phone service, cable television, gas, water, sewer and electricity);
(d) installments of municipal and other governmental improvement liens and special assessments;
(e) periodic license and permit fees;
(f) revenues and expenses from any Hotel guest rooms and facilities (other than those set forth in clause (hg) below) occupied on the evening immediately preceding the Cut-Off Time, including any Sales Taxes, room taxes and other taxes charged to guests in such rooms and rooms, all parking charges, sales from mini-bars, in-room food and beverage, telephone, facsimile and data communications, in-room movie, laundry, and other service charges allocable to such rooms with respect to the evening immediately preceding the Cut-Off TimeTime (the “Rooms Ledger”), shall be divided 50:50 between Xxxxx Seller and CWI (where a complete meeting package (“CMP”) guest is staying on a CMP rate, the food and beverage revenues shall be allocated based on whether the applicable meal or service occurred before or after the Cut-Off Time); provided, however, that to the extent that either Xxxxx Seller or Hotel Manager, as applicable, records in the ordinary course the times at which food and beverage sales, telephone, facsimile or data communication, in-room movie, laundry, and other services are ordered by guests, then the same shall be prorated when orders for the same were received. All revenues from restaurants and other service operations conducted at the Hotel shall be prorated based on whether the same accrued before or after the Cut-Off Time as described in the preceding sentence. The revenues referred to For the avoidance of doubt, Accounts Receivable (other than those comprising the Rooms Ledger) shall remain the property of Seller after Closing in this clause (g) are referred to collectively as “guest revenues”;accordance with Section 2.2.5 and shall not be prorated at Closing.
(g) revenues and expenses from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in the Hotel, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be prorated based on when the function took place. The revenues referred to in this clause (hg) are referred to collectively as “conference revenues”;
(h) the Rooms Ledgerexpenses for food and beverages;
(i) expenses for food and beverages and reserve stock of linens, towels, paper goods, soaps, cleaning and other supplies delivered prior to midnight;
(j) prepaid rents and prepaid room receipts and deposits, function receipts and deposits and other reservation receipts and deposits (including the amount of unredeemed gift certificates, vouchers, trade-outs and similar items for free or discounted use of any of the Hotel rooms or other activities or services, if any)) which are not transferred to and retained by CWI as of the Cut-Off Time;
(j) accrued but unpaid vested and unvested salary, wages and bonuses, accrued but unpaid health and welfare benefits, accrued but unpaid vested and unvested vacation, sick and personal days, accrued but unpaid vested and unvested fringe benefits, accrued but unpaid employee severance payments, and other accrued but unpaid vested and unvested compensation and fringe benefits;
(k) retail sales (including any tax on the sale of any Personal Property effected pursuant to this Agreement)sales, occupancy and liquor taxes and like impositions accrued as of the Cut-Off Time;
(l) revenue relating to the common areas of the Hotel;
(m) revenue (after the settlement of applicable commissions and/or costs) relating to vending machines in the Hotel;
(n) all till money, cash-on-hand, and all sums in house banks for the Hotel, in which case all right, title and interest to the till money, cash-on-hand and house banks shall be assigned and conveyed by Xxxxx to CWI and Xxxxx shall receive a credit equal to the amount thereof, provided that, if Xxxxx and CWI cannot mutually agree upon the amount of the till money, cash-on-hand and house banks, the provisions of this clause (o) shall be inapplicable and title to the till money, cash-on-hand and house banks shall remain with Xxxxx; and
(on) such other items as are usually and customarily prorated between buyers and sellers of hotel properties in the area where the Hotel is located.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors 2 Inc)
