Annual Business Plan. (a) On or before November 15th of each year during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval an annual business and leasing plan in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN"). The Annual Business Plan shall be a comprehensive plan for the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters set forth on EXHIBIT D. Manager shall consult the Owner concerning the proposed Annual Business Plan and shall promptly incorporate therein such changes as Owner may direct. The Annual Business Plan, and all budgets contained therein, shall be in a form consistent with the Reporting Package. (b) Manager shall: (i) perform its duties hereunder in accordance with the Approved Annual Business Plan; and (ii) use all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do not exceed the operating budget (the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth in the Approved Annual Business Plan. (c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 3 contracts
Samples: Property Management Agreement (Boston Capital Real Estate Investment Trust Inc), Property Management Agreement (Boston Capital Real Estate Investment Trust Inc), Property Management Agreement (Boston Capital Real Estate Investment Trust Inc)
Annual Business Plan. (a) On or before November 15th December 1 of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval ’s approval, an annual business “Annual Business Plan” (herein so called and leasing plan also sometimes referred to as a “Budget”) for the Apartments for the promotion, leasing, operations, repair and maintenance of the Apartments for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive plan detailed budget of projected income and expenses for the management, operation, leasing, repair, maintenance Apartments for such calendar year (the “Operating Budget”) and promotion a detailed budget of the Property and projected capital improvements for the Apartments for such calendar year (the “Capital Budget”), and an estimate of reserve funds needed and other matters set forth on EXHIBIT D. information requested by Owner for such calendar year.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such approve or designate changes as Owner may direct. The for the proposed Annual Business PlanPlan within 20 days after receipt thereof. To be effective, and all budgets contained thereinany notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail to individual line items. If Owner fails to provide an effective notice disapproving a proposed Annual Business Plan within such 20 day period, the proposed Annual Business Plan shall be deemed to be approved. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in a form consistent connection with the Reporting PackageOperating Budget. However, subject to availability of Apartments and/or Owner funds, Manager shall conform to the Annual Business Plan as approved by Owner.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be submitted to Owner for approval, which approval shall not be unreasonably withheld or conditioned. Owner shall approve or disapprove such revisions within 15 days after receipt thereof. If Owner fails to provide a notice disapproving such revisions within such 15 day period, the proposed revisions shall be deemed to be approved.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Apartments shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account on cause a basis consistent with the Operating Budget classifications and Reporting Package. Except in case variance of emergencies which could reasonably pose a threat of injury to persons greater than ten percent (10%) or property$2,000, whichever is greater, in which event any one accounting category for the current month cumulative year-to-date total shall be promptly explained to Owner by Manager in the next operating statement submitted by Manager to Owner. During the calendar year Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Apartment Management Agreement (Behringer Harvard Opportunity REIT I, Inc.), Apartment Management Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Annual Business Plan. (a) On or before November 15th October 1 of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval ’s approval, an annual business “Annual Business Plan” for the Project for the promotion, leasing, operations, repair and leasing plan maintenance of the Project for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive detailed budget of projected income and expenses for the Project for such calendar year (the “Operating Budget”) and a detailed budget of projected capital improvements for the Project for such calendar year (the “Capital Budget”). Within 30 days following the purchase of a Project by Owner, after the approval of the Annual Business Plan for such calendar year, Manager shall prepare and submit to Owner a comparable business plan for such Project and Manager and Owner must follow the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters procedure set forth on EXHIBIT D. in (b) below with respect to approving any such additional business plan.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such changes as Owner may direct. The notify Manager with respect to the approval or disapproval of the proposed Annual Business Plan within 20 days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Owner fails to provide approval of a proposed Annual Business Plan within such 20 day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Owner approves a form consistent new Annual Business Plan for such Project. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be subject to the prior written approval of Owner.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account cause a variance of greater than ten percent (10%) or $2,000, whichever is greater, in any one accounting category on a cumulative year-to-date basis consistent with shall be promptly explained to Owner by Manager in the Operating Budget classifications and Reporting Packagenext monthly report submitted by Manager to Owner under Section 3.14(a) below. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event During the calendar year Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Property Management Agreement (Behringer Harvard Multifamily Reit I Inc), Property Management Agreement (Behringer Harvard Multifamily Reit I Inc)
Annual Business Plan. (a) On or before November 15th October 1 of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval ’s approval, an annual business Annual Business Plan (herein so called) for the Project for the promotion, leasing, operations, repair and leasing plan maintenance of the Project for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive detailed budget of projected income and expenses for the Project for such calendar year (the “Operating Budget”) and a detailed budget of projected capital improvements for the Project for such calendar year (the “Capital Budget”). Within 30 days following the purchase of a Project by Owner, after the approval of the Annual Business Plan for such calendar year, Manager shall prepare and submit to Owner a comparable business plan for such Project and Manager and Owner must follow the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters procedure set forth on EXHIBIT D. in (b) below with respect to approving any such additional business plan.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such changes as Owner may direct. The notify Manager with respect to the approval or disapproval of the proposed Annual Business Plan within 20 days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Owner fails to provide approval of a proposed Annual Business Plan within such 20 day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Owner approves a form consistent new Annual Business Plan for such Project. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be subject to the prior written approval of Owner.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account cause a variance of greater than ten percent (10%) or $2,000, whichever is greater, in any one accounting category on a cumulative year-to-date basis consistent with shall be promptly explained to Owner by Manager in the Operating Budget classifications and Reporting Packagenext monthly report submitted by Manager to Owner under Section 2.14(a) below. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event During the calendar year Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Property Management Agreement (Behringer Harvard Multifamily Reit I Inc), Property Management Agreement (Behringer Harvard Multifamily Reit I Inc)
Annual Business Plan. (ai) On or before November 15th The initial Annual Business Plan for the balance of each calendar year during 2015 approved by Owner and Manager is attached hereto as Exhibit “B” and is incorporated herein for all intents and purposes under this Agreement (the term “Initial Business Plan”).
(ii) For Annual Business Plans for calendar years 2016 and 2017, Manager agrees to prepare an Annual Business Plan for the operation of this Agreementthe Project for Owner's review and approval, no later than October 31 of the immediately preceding year for the 2016 calendar year and October 15 of the immediately preceding year for the 2017 (and any subsequent) calendar year. If final approval of a proposed Annual Business Plan by Owner has not been given by the beginning of the year to which such proposed Annual Business Plan relates, Manager shall prepare operate the Project on the basis of the previous year’s approved Annual Business Plan, adjusted by (i) assuming that the revenue from the Project will increase to 103% of the revenues collected in the prior year, (ii) assuming that the Controllable Expenses will increase to 103% of the amount of the actual Controllable Expenses incurred in the prior year, (iii) increasing all Uncontrollable Expenses by any anticipated or known increases in such Uncontrollable Expenses, and submit (iv) including any Emergency Expenditure (as defined in Section 5(k) below). Notwithstanding the foregoing to the contrary, if, prior to the commencement of calendar year 2016, the parties have not agreed on the budget for capital expenditures at the Project in the Annual Business Plan for calendar year 2016, there shall be no changes in budgeted capital expenditures for calendar year 2016; provided, however, that any incomplete capital projects commenced in calendar year 2015 and contemplated in the Initial Business Plan shall be funded as provided in the Initial Business Plan until such capital projects are completed.
(iii) If Manager and Owner agreed to the Annual Business Plan for Owner's prior approval an annual business and leasing plan calendar year 2017 in accordance with subsection (ii) above, then the Annual Business Plan for calendar year 2018 shall also be determined in accordance with the requirements applicable provisions of EXHIBIT D hereto subsection (ii) above. If, however, Manager and Owner were unable to agree to the Annual Business Plan for calendar year 2017, then Owner may establish the Annual Business Plan for calendar year 2018 without Manager’s consent.
(iv) For Annual Business Plans for calendar years 2019 and all subsequent calendar years, if applicable, Manager shall have the right to prepare and propose an Annual Business Plan for such calendar year on or prior to October 15 of the immediately preceding year (without obligation to do so), and Owner may, regardless of the information contained in Manager’s proposal, establish the Annual Business Plan for the applicable calendar year, without Manager’s consent.
(v) Manager and Owner each acknowledge and agree that, in establishing the Annual Business Plans in accordance with this Section 5(e), each shall be obligated to act reasonably and in good faith, taking into account past performance of the Project, leasing trends and competitive properties within the market where the Project is located, the age of the Project and the units at the time such Annual Business Plan is established, and such other factors as reasonably prudent owners and managers of multifamily assets substantially similar to the Project would take into account in order to maximize revenue therefrom.
(vi) No material deviations (as such EXHIBIT D may defined herein) from any item in an Annual Business Plan approved in accordance with the terms herein shall be modified made by Owner from time Manager without the prior approval of the “Management Committee” (as defined in the Operating Agreement), to time) (the "ANNUAL BUSINESS PLAN")extent required by the Operating Agreement. The Manager shall provide quarterly updates to the Annual Business Plan, solely for informational purposes. Each Annual Business Plan shall be a comprehensive plan for include the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters information set forth on EXHIBIT D. Manager shall consult the in Exhibit “E”. Owner concerning (and its sole member) will consider the proposed Annual Business Plan and shall promptly incorporate therein such changes as Owner may direct. The Annual Business Plan, and all budgets contained therein, shall be in a form consistent with the Reporting Package.
(b) Manager shall: (i) perform its duties hereunder in accordance with the Approved terms of the Operating Agreement and will consult with Manager prior to the commencement of the forthcoming calendar year in order to agree on an Annual Business Plan; and (ii) Plan for such calendar year. In no event shall Owner have the right to modify the Annual Business Plan to reduce the Management Fee or Reimbursable Expenses otherwise due pursuant to Section 4. In no event shall Manager be deemed in default under this Agreement if such changes by Owner to the Annual Business Plan cause Manager to have insufficient funds to perform its obligations hereunder. Manager agrees to use all commercially reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (amount reasonably necessary and, in any event, will not exceed either the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total amount or in any one accounting category. All actual expenses must be charged Notwithstanding anything to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or propertycontrary, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior written approval for any expenditure that will result in a variance of the greater of $5,000 or 5% an excess of the annual budgeted amount set forth in the Annual Business Plan in any one accounting line item category by the lesser of ten percent (10%) or $10,000 or $25,000 in the aggregate for all categories (a “material deviation”). Manager shall promptly advise and inform the Owner of any transaction, notice, event or proposal directly relating to the management and operation of the Operating Budget. In additionProject which does or is likely to significantly affect, Manager shall obtain Owner's prior approval for any expenditure in excess either adversely or favorably, the Project, other assets of $5,000, regardless of whether such expenditure is set forth in the Approved Owner or cause a material deviation from the Annual Business Plan. Nothing contained herein shall in any way diminish the obligations or duties of Manager hereunder.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Property Management Agreement (Bluerock Residential Growth REIT, Inc.), Property Management Agreement (Bluerock Residential Growth REIT, Inc.)
Annual Business Plan. The Parties have heretofore agreed to the initial Annual Business Plan (covering the period from the Effective Date through and until October 31, 2010) (as may be modified, amended or supplemented by the Members in accordance with this Agreement, the “Initial Annual Business Plan”). The Parties agree and acknowledge that although the Initial Annual Business Plan covers the remaining portion of the 2009 Fiscal Year and the 2010 Fiscal Year, all subsequent Annual Business Plans shall cover one (1) full Fiscal Year. Not later than sixty (60) calendar days prior to the end of each Fiscal Year (other than the 2009 Fiscal Year), the President shall cause to be prepared and shall present to the Board a business plan (the “Annual Business Plan”) for the succeeding Fiscal Year. Each Annual Business Plan (including both the Initial Annual Business Plan and each subsequent Annual Business Plan) shall contain, inter alia, (a) On pro forma financial statements (projected profit and loss, balance sheet, and changes in financial position) for the succeeding Fiscal Year, (b) projected expenditures (expense and capital) for the succeeding Fiscal Year, (c) financing plans, cash requirements, loan commitments (each, an “Annual Business Plan Loan Commitment”) and Capital Contribution commitments (each, an “Annual Business Plan Capital Contribution Commitment”) for the succeeding Fiscal Year, (d) projected distributions for the succeeding Fiscal Year, (e) the amount of money to be spent by the Company on research and development and Intellectual Property development activities for the succeeding Fiscal Year, (f) decision rules regarding the timing and allocation of resources of Navistar or before November 15th the Company, as applicable (in the case of each year during Navistar, subject to Section 9.2.2), for the term manufacture or assembly by Navistar or the Company, as applicable, of this Agreement(i) Caterpillar Truck Models and (ii) Navistar Truck Models, Manager which shall prepare be consistent with achieving the timelines and submit to Owner for Owner's prior approval an annual business milestones set forth in such Annual Business Plan, and leasing plan (g) such other relevant reports and topics as are set forth in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")Initial Annual Business Plan. The Members shall be obligated to fund the Annual Business Plan Loan Commitments and the Annual Business Plan Capital Contribution Commitments in proportion to their respective Percentage Interests at the time such loan or Capital Contribution is required to be funded by such Annual Business Plan, except to the extent the Board determines by Majority Consent that such Annual Business Plan Loan Commitments or Annual Business Plan Capital Contribution Commitments shall be funded in a different proportion. Other than with regard to the Initial Annual Business Plan, each Annual Business Plan shall be a comprehensive plan for subject to the management, operation, leasing, repair, maintenance and promotion approval of the Property Board upon Majority Consent. If Caterpillar, Navistar and for the other matters set forth on EXHIBIT D. Manager shall consult the Owner concerning the proposed their respective Representatives, as applicable, fail to mutually agree upon and adopt an Annual Business Plan for the Company and a Rolling Business Plan for the Company prior to the first day of the Fiscal Year to be covered by such plans, the Company shall promptly incorporate therein continue operating under this Agreement under that portion of the Rolling Business Plan most recently approved by the Board upon Majority Consent that relates to such changes as Owner may directFiscal Year (and such portion of the Rolling Business Plan most recently approved by the Board shall be deemed to be the Annual Business Plan for such Fiscal Year). Any approved Annual Business Plan shall not be changed, except upon Majority Consent of the Board. The President shall analyze any variance between the actual and planned performance under the Annual Business Plan, and all budgets contained therein, shall be in a form consistent with the Reporting Package.
(b) Manager shall: (i) perform its duties hereunder in accordance with the Approved Annual Business Plan; and (ii) use all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do not exceed the operating budget (the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged report to the proper account on a basis consistent with Board the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner results of such emergency within two (2) business daysanalysis, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance promptly after the end of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth in the Approved Annual Business Planeach fiscal quarter.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Joint Venture Operating Agreement (Navistar International Corp), Joint Venture Operating Agreement (Caterpillar Inc)
Annual Business Plan. (a) On or before November 15th 1 of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner the Company for Owner's prior approval by the Company, an annual business “Annual Business Plan” for the Project for the promotion, leasing, operations, repair and leasing plan maintenance of the Project for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive detailed budget of projected income and expenses for the Project for such calendar year (the “Operating Budget”) and a detailed budget of projected capital improvements for the Project for such calendar year (the “Capital Budget”). Within thirty (30) days following the purchase of a Project by Owner, after the approval of the Annual Business Plan for such calendar year, Manager shall prepare and submit to Owner a comparable business plan for such Project and Manager and Owner must follow the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters procedure set forth on EXHIBIT D. in (b) below with respect to approving any such additional business plan.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such changes as Owner may direct. The notify Manager with respect to the approval or disapproval of the proposed Annual Business Plan within twenty (20) days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Owner fails to provide approval of a proposed Annual Business Plan within such twenty (20) day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Owner approves a form consistent new Annual Business Plan for such Project. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be subject to the prior written approval of Owner.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account cause a variance of greater than ten percent (10%) or Two Thousand Dollars ($2,000.00), whichever is greater, in any one accounting category on a cumulative year-to-date basis consistent with shall be promptly explained to Owner by Manager in the Operating Budget classifications and Reporting Packagenext monthly report submitted by Manager to Owner under Section 3.14(a) below. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event During the calendar year Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Master Modification Agreement (Behringer Harvard Multifamily Reit I Inc), Property Management Agreement (Behringer Harvard Multifamily Reit I Inc)
Annual Business Plan. (a) On or before Manager agrees to prepare an Annual Business Plan for the operation of the Project for Owner's review and approval, no later than November 15th of 1 in each year during the term of this Agreement. If final approval of a proposed Annual Business Plan by Owner has not been given by the beginning of the year to which such proposed Annual Business Plan relates, Property Manager shall prepare operate the Project on the basis of an Annual Business Plan determined by (i) assuming that the revenue from the Project will increase to 103% of the revenues collected in the prior year, (ii) assuming that the Controllable Expenses will increase to 103% of the amount of the actual Controllable Expenses incurred in the prior year, (iii) increasing all Uncontrollable Expenses by any anticipated or known increases in such Uncontrollable Expenses, and submit to Owner for Owner's prior approval (iv) including any Emergency Expenditure (as defined in Section SU) below). No material deviations (as defined herein) from any item in an annual business and leasing plan Annual Business Plan approved in accordance with the requirements terms herein shall be made by Manager without the prior approval of EXHIBIT D hereto the "Management Committee" (as defined in the Operating Agreement), to the extent required by the Operating Agreement. The Manager shall provide quarterly updates to the Annual Business Plan, solely for informational purposes. Each Annual Business Plan shall include the information set forth in Exhibit "E". Owner (and its sole member) will consider the proposed Annual Business Plan in accordance with the terms of the Operating Agreement and will consult with Manager prior to the commencement of the forthcoming calendar year in order to agree on an Annual Business Plan for such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")calendar year. The Annual Business Plan shall be a comprehensive plan for calendar year 2014 is attached hereto at Exhibit "B". Notwithstanding anything herein to the managementcontrary, operationthe Owner may, leasingat any time and from time to time, repair, maintenance and promotion submit to Manager reasonable modifications to all or any portion of the Property and for the other matters set forth on EXHIBIT D. Manager shall consult the Owner concerning the proposed Annual Business Plan during the course of a calendar year, which modifications shall be incorporated in the Annual Business Plan then in effect and such Annual Business Plan as modified shall promptly incorporate therein be deemed to be the Annual Business Plan then in effect, and Owner shall fund into the Disbursement Account any and all amounts as and when necessary to fund any increases in expenditures which may be required as a result of any such changes as Owner may direct. The change to the Annual Business Plan. Notwithstanding the foregoing sentence to the contrary, and all budgets contained therein, in no event shall Owner have the right to modify the Annual Business Plan to reduce the Management Fee or Reimbursable Expenses otherwise due pursuant to Section 4. In no event shall Manager be deemed in a form consistent with default under this Agreement if such changes by Owner to the Reporting Package.
(b) Annual Business Plan causes Manager shall: (i) to have insufficient funds to perform its duties hereunder in accordance with the Approved Annual Business Plan; and (ii) obligations hereunder. Manager agrees to use all commercially reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (amount reasonably necessary and, in any event, will not exceed either the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total amount or in any one accounting category. All actual expenses must be charged Notwithstanding anything to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or propertycontrary, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior written approval for any expenditure that will result in a variance of the greater of $5,000 or 5% an excess of the annual budgeted amount in any one accounting line item category by more than $10,000.00 of the Operating BudgetAnnual Business Plan or $25,000.00 in the aggregate for all categories (a "material deviation"). In addition, Manager shall obtain Owner's prior approval for promptly advise and inform the Owner of any expenditure in excess transaction, notice, event or proposal directly relating to the management and operation of $5,000the Project which does or is likely to significantly affect, regardless either adversely or favorably, the Project, other assets of whether such expenditure is set forth in the Approved Owner or cause a material deviation from the Annual Business Plan. Nothing contained herein shall in any way diminish the obligations or duties of Manager hereunder.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 2 contracts
Samples: Property Management Agreement (Bluerock Residential Growth REIT, Inc.), Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Annual Business Plan. (a) On or before November 15th 1 of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner the Company for Owner's prior approval by the Company, an annual business “Annual Business Plan” for the Project for the promotion, leasing, operations, repair and leasing plan maintenance of the Project for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive detailed budget of projected income and expenses for the Project for such calendar year (the “Operating Budget”) and a detailed budget of projected capital improvements for the Project for such calendar year (the “Capital Budget”). Within thirty (30) days following the purchase of a Project by Owner, after the approval of the Annual Business Plan for such calendar year, Manager shall prepare and submit to Owner a comparable business plan for such Project and Manager and Owner must follow the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters procedure set forth on EXHIBIT D. in (b) below with respect to approving any such additional business plan.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such changes as Owner may direct. The notify Manager with respect to the approval or disapproval of the proposed Annual Business Plan within twenty (20) days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Owner fails to provide approval of a proposed Annual Business Plan within such twenty (20) day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Owner approves a form consistent new Annual Business Plan for such Project. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be subject to the prior written approval of Owner.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account cause a variance of greater than ten percent (10%) or Two Thousand Dollars ($2,000.00), whichever is greater, in any one accounting category on a cumulative year‑to‑date basis consistent with shall be promptly explained to Owner by Manager in the Operating Budget classifications and Reporting Packagenext monthly report submitted by Manager to Owner under Section 3.14(a) below. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event During the calendar year Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 1 contract
Samples: Limited Partnership Agreement (Behringer Harvard Multifamily Reit I Inc)
Annual Business Plan. (a) On or before November 15th of each year during the term of this Agreement, Manager shall prepare and submit has submitted to Owner an Operating Budget and the Annual Business Plan for Owner's prior approval an annual business and leasing plan in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")____ Fiscal Year. The Annual Business Plan for ____ has been reviewed and approved by Owner in the manner described in Article 8.02(b)(1) hereof Manager shall operate the Hotel in accordance with the Annual Business Plan for ______ during the ____ Fiscal Year.
(1) At least forty-five (45) days prior to the commencement of each subsequent Fiscal Year, Manager shall submit to Owner an annual forecast for the operation of the Hotel for such Fiscal Year containing, in such detail as may be reasonably requested by Owner, revenue projections and budgets of expenses (the "Operating Budget"). The Operating Budget shall be substantially in form consistent with GAAP. Manager shall, at the same time, also submit to Owner a comprehensive plan for Marketing Plan, a Human Resources Compensation Plan, the managementFF&E Replacement Budget and the Capital Repairs Budget, operationwhich, leasingtogether with the Operating Budget, repairwill comprise the "Annual Business Plan." Manager shall provide Owner, maintenance upon request, additional detail, information and promotion assumptions used in preparation of the Property and for the other matters set forth on EXHIBIT D. Annual Business Plan. Manager shall consult review the Annual Business Plan with Owner, and subject to Owner's approval, which shall not be unreasonably withheld, Manager shall implement such Annual Business Plan during the successive Fiscal Year (during which it shall be referred to as the "Approved Budget"). Owner concerning shall approve the proposed Annual Business Plan or state its specific objections thereto (or to any specific item or items therein) within thirty (30) days after the Annual Business Plan is submitted by Manager to Owner. In the event Owner declines to approve the Annual Business Plan or any specific line item or items of the Annual Business Plan prior to commencement of the Fiscal Year in question, pending resolution thereof the Annual Business Plan or the specific line item or items of expense (not revenue) that have not been approved shall be suspended and shall promptly incorporate therein replaced for the Fiscal Year in question by an amount equal to the lesser of (i) that amount proposed by Manager and (ii) the amount of such changes as budget item or items for the Fiscal Year prior thereto, adjusted (per item) by the percentage change in the Index over the twelve (12) month period immediately preceding the start of the Fiscal Year in question. If, thereafter, at any time either Owner may direct. The or Manager determines that the Annual Business Plan, and all budgets contained or any specific line item or items therein, shall cannot be in a form consistent with agreed to by the Reporting Package.
(b) parties, then either Manager shall: (i) perform its duties hereunder or Owner may require the matter to be submitted to arbitration in accordance with Article 22 hereof Manager makes no assurances that the Approved actual performance of the Hotel shall correspond to its estimates in the Annual Business Plan; and (ii) . Manager agrees to use all reasonable efforts to ensure operate the Hotel within the Approved Budget and in a manner designed to maximize Gross Rooms Sales and Net Operating Income. Centralized Services costs, the National Sales, Business Promotion and Reservations Services Assessment, Additional Program Charges and TPR Charges (as herein defined), shall be included in the Operating Budget, but with Centralized Services costs to be subject to Owner's approval as part of the budget approval process set forth above.
(2) Notwithstanding the provisions of Article 8.02(b)(1) or anything to the contrary contained elsewhere in this Agreement, Manager may, without Owner's approval, make aggregate expenditures in any year which exceed the Approved Budget, provided that the actual costs of maintaining and operating the Property do such excess does not exceed the operating budget (the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance of the greater of $5,000 or by more than 5% of the annual budgeted amount in any one accounting line item of the Operating Budget%. In addition, Manager shall obtain Owner's prior approval for any expenditure may expend in excess of $5,000said 5% limitation under the following circumstances (provided such expenditures are reasonable in nature and amount based on such circumstances):
(A) as the result of increased costs due to increases in the volume of Total Sales (by reason of increased occupancy rates or otherwise); or
(B) as the result of an emergency, regardless as described in Article 7.10, or of whether uncontrollable expenditures, such expenditure is as insurance, real estate taxes, weather-related costs, and increases in the cost of utilities based upon changes in utility rates. References in this Agreement to the limitations imposed by the Approved Budget (and phrases of similar import) shall be deemed to incorporate Manager's authority to expend funds in excess of the Approved Budget as set forth in this Article 8.02(b)(2). Manager shall promptly notify Owner of any expenditures that have been or are expected to be made in excess of the Approved Annual Business PlanBudget and of the reasons therefor.
(c3) In addition to the additional amounts Manager may expend pursuant to subparagraph (2) above, Owner shall have the right to require changes in the Approved Annual Business Plan and Manager acknowledge and agree that there may occur from time to time; providedtime unpredicted significant changes, howevervariables or events affecting the operation of the Hotel, that including unanticipated changes in occupancy rates, market conditions, or additional unanticipated items of income or expense. In such event, Manager may request variance(s) from the Approved Budget which are reasonable and necessary to continue to operate the Hotel in accordance with the Operational Standards and the Hotel Lease. Owner's approval of such a request shall not be unreasonably withheld. Any such request by Manager shall be submitted to Owner in writing with an explanation thereof and shall be accompanied by supporting information for the request. Owner shall provide Manager with at least respond to any such request within fifteen (15) days' notice days of such changes.the receipt thereof
Appears in 1 contract
Annual Business Plan. Within sixty (a60) On or before November 15th days after the end of each year during Fiscal Year, the term of this Agreement, Manager President shall prepare and submit or cause to Owner be prepared and submitted to the Board of Directors a strategic plan covering the current year and including the current year’s budget (the “Annual Business Plan”), as well as such other information as may be required by the Board of Directors to be submitted to it to aid in its review of the Annual Business Plan. Each Annual Business Plan shall provide that the Members shall sell products to the LLC at full standard manufacturing costs plus warehousing costs plus freight costs and shall fix for Owner's prior approval an annual business the applicable year such costs that may be charged the LLC by each Member in a master cost list for the various products to be sold to the LLC. Additionally, each Annual Business Plan shall provide for changes that may be made as to such fixed costs through the applicable year and leasing plan in accordance shall set forth the standard product warranties associated with the requirements of EXHIBIT D hereto (as such EXHIBIT D may products to be modified sold to the LLC by Owner from time to time) (the "ANNUAL BUSINESS PLAN")Members. The Annual Business Plan shall also set forth that the Members shall charge the LLC, on a monthly basis unless otherwise agreed, all selling, general and administrative costs of their respective hospitality organizations, including the costs of all hospitality sales representatives, and shall provide that their direct out-of-pocket costs will be a comprehensive plan passed along to the LLC and shall fix for the managementapplicable year all other costs which cannot be directly passed on, operation, leasing, repair, maintenance and promotion of such as costs for accounting services. Additional topics that shall be covered by the Property and for the other matters set forth on EXHIBIT D. Manager shall consult the Owner concerning the proposed Annual Business Plan include the Trading Area for the applicable year, planned sales, profits, capital expenditures and working capital needs for the applicable year (in other words, the annual budget), the terms and conditions under which either of the Members shall promptly incorporate therein such changes conduct any other business with the LLC during the applicable year (for example, the terms and conditions under which any technologies may be licensed by either Member to the LLC or under which the LLC shall develop or have developed any new technologies and any license to the Members of same), the financing arrangements the LLC shall utilize during the applicable year and any targets and bonus arrangements for the applicable year for the President in his capacity as Owner may directgeneral manager of the LLC. The Board of Directors shall review, revise and approve the Annual Business Plan. If the President, any member of the Board of Directors or any Member shall propose during any year any amendment of an approved Annual Business Plan (including the authorization of any expenditure exceeding an amount authorized under the Annual Business Plan or any new product to be sold by either Member to the LLC) such amendment shall be submitted to the Board of Directors for approval, and all budgets contained thereinif the Board of Directors cannot agree upon approval or disapproval of such amendment, the decision on such amendment shall be in a form consistent with deferred until the Reporting Package.
(b) Manager shall: (i) perform its duties hereunder in accordance with meeting of the Approved Board of Directors concerning creation of the next Annual Business Plan; and (ii) use all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do not exceed the operating budget (the "OPERATING BUDGET") which is a part of the Approved . The initial Annual Business Plan either is attached hereto as Exhibit A. An initial three (3) year sales plan addressing targeted product sales volumes is attached hereto as Exhibit B (the “Initial Sales Plan”) and shall be considered in total or in any one accounting category. All actual expenses must be charged to the proper account on a basis consistent connection with the Operating Budget classifications preparation and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance review of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen for the first three (153) days' notice years of such changesoperation of the LLC.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Dixie Group Inc)
Annual Business Plan. (a) On or before November 15th October 1 of each calendar year during the term of this Agreement, Manager Subcontractor shall prepare and submit to Owner Manager for Owner's prior Manager approval an annual business and leasing plan “Annual Business Plan” in accordance with the requirements of EXHIBIT D form attached hereto as Exhibit B (as such EXHIBIT D which form may be modified revised by Owner Manager from time to time) (), for the "ANNUAL BUSINESS PLAN")Project for the promotion, leasing, management, operations, repair and maintenance of the Project for each calendar year during which this Agreement is in effect. The Annual Business Plan shall be include a comprehensive plan detailed budget of projected income and expenses for the management, operation, leasing, repair, maintenance Project for such calendar year (the “Operating Budget”) and promotion a detailed budget of the Property and projected capital improvements for the other matters set forth on EXHIBIT D. Project for such calendar year (the “Capital Budget”).
(b) Subcontractor shall meet with Manager to discuss the proposed Annual Business Plan, and Manager shall consult notify Subcontractor with respect to the Owner concerning approval or disapproval of the proposed Annual Business Plan and shall promptly incorporate therein such changes as Owner may direct. The within twenty (20) days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Manager fails to provide approval of a proposed Annual Business Plan within such twenty-day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Manager approves a form consistent new Annual Business Plan for such Project. Manager acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Subcontractor shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: (i) perform its duties hereunder in accordance with the Approved Annual Business Plan; Subcontractor agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in cause a variance of the greater of than five percent (5%) or $5,000 or 5% of the annual budgeted amount 5,000, whichever is greater, in any one accounting line item of the Operating Budget. In addition, category on a cumulative year-to-date basis shall be promptly explained to Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth by Subcontractor in the Approved next monthly report submitted by Subcontractor to Manager under Section 3.13 below. During the calendar year Subcontractor shall inform Manager of any major increases or decreases in costs, expenses, and income that were not reflected in the Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Annual Business Plan. (a) 3.4.1 On or before 90 days after the commencement date of this Agreement for the first Fiscal Year and on or prior to November 15th 15 (or 15 days prior to the end of each year during Fiscal Year in the term event that a Fiscal Year does not terminate on December 31 of this Agreementsuch year) of each Fiscal Year thereafter, Manager shall prepare and submit to Owner Lessee the proposed Annual Business Plan for Owner's prior approval an annual business and leasing plan in accordance with the requirements of EXHIBIT D hereto (Property for the next Fiscal Year. Notwithstanding the foregoing, the Annual Business Plan submitted hereunder shall be submitted to Lessee at such other time as such EXHIBIT D may be modified required by the Owner from time upon 90 days prior written notice to time) (Manager notifying Manager of the "ANNUAL BUSINESS PLAN")date on which such Annual Business Plan must be submitted. The Annual Business Plan shall be include the marketing plan provided for in Section 3.1.1, an operating budget setting forth in reasonable line-item detail the projected income from and expenses of all aspects of the Operations of the Property (“Operating Budget”) for the next Fiscal Year, including a comprehensive schedule of the Property room rentals, restaurant and lounge revenue, and miscellaneous income, and a schedule of expected special repairs and maintenance and a capital replacement budget describing proposed capital projects and expenditures for the Property including FF&E expenditures all in reasonable line-item detail. If the commencement date of this Agreement occurs after the end of the second quarter of the Property’s Fiscal Year, Lessee and Manager shall reasonably determine the detail required for a pro forma business plan for the management, operation, leasing, repair, maintenance and promotion remainder of the Property and for current Fiscal Year, which abbreviated business plan also shall be provided to Lessee within 45 days after the other matters set forth commencement date of this Agreement. Operating Budget information shall be presented on EXHIBIT D. Manager shall consult the Owner concerning the proposed Annual Business Plan a monthly basis and shall promptly incorporate therein such changes as Owner may directinclude all income from and expenses and operating costs related to the operation of the Property. The Annual Business Plan, and all budgets contained therein, Operating Budget shall be in a form consistent with the Reporting Package.
(b) Manager shall: (i) perform its duties hereunder prepared in accordance with the Approved Uniform System to the extent applicable and shall otherwise be prepared in accordance with Manager’s standard financial reporting and budgeting practices which reporting and budgeting practices shall be consistent with those used in the hospitality industry for hotels of similar size and type to the Property.
3.4.2 Lessee shall have 30 days from the date of its receipt of the Annual Business Plan submitted by Manager to notify Manager in writing of any objections thereto. If Lessee does not so notify Manager within the 30-day period, then the Annual Business Plan shall be deemed approved by Lessee. If Lessee objects to all or part of any Annual Business Plan proposed by Manager, Lessee shall furnish Manager with the reasons for its objections and Manager and Lessee shall in good faith negotiate a mutually satisfactory Annual Business Plan; and (ii) use all reasonable efforts to ensure that . Until the actual costs of maintaining and operating the Property do not exceed the operating budget (the "OPERATING BUDGET") which is a part of the Approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged to the proper account on a basis consistent with the Operating Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In additionis approved, Manager shall obtain Owner's prior approval for any expenditure manage, operate, and maintain the Property in excess of $5,000, regardless of whether such expenditure is set forth in accordance with its reasonable business judgment and consistent to the Approved extent applicable with the most recently approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved 3.4.3 Each Annual Business Plan presented for Lessee’s approval and any budgets, reports, or projections prepared by Manager shall be prepared in good faith based on Manager’s experience and reasonable expectations for the Property’s performance. However, Lessee acknowledges that Manager makes no guarantee, warranty, or representation regarding the attainability of the goals or limits set forth in the Annual Business Plan or any budgets, reports, or projections prepared by it or that there will be profits or that there will not be losses from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice the operation of such changesthe Property.
Appears in 1 contract
Annual Business Plan. (a) On or before November 15th At least sixty (60) days prior to the end of each calendar year during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval an annual business and leasing plan in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN"). From the date of this Agreement until an Annual Business Plan is first approved by Owner, Manager shall operate under the Marketing Plan attached as Schedule 4.5B to that certain Limited Partnership Agreement of XX Xxxxxxxxxx Xxxxxxx, XX of even date herewith (the "JOINT VENTURE AGREEMENT"). Owner shall approve or disapprove each Annual Business Plan within sixty (60) days after receipt. In the event that Owner disapproves an Annual Business Plan, Owner and Manager, within ninety (90) days of a notice of such disapproval to Manager, shall jointly prepare an Annual Business Plan, during which time the last Approved Annual Business Plan shall remain in effect. The Annual Business Plan shall be a comprehensive plan for the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters set forth on EXHIBIT D. It will include a 5 year capital plan. Manager shall consult the Owner concerning the proposed Annual Business Plan and shall promptly incorporate therein such changes as Owner may direct. The Annual Business Plan, and all budgets contained therein, shall be in a form substantially consistent with the Reporting Package. Notwithstanding the foregoing, Manager shall use the Chart of Accounts.
(b) Manager shall: (i) perform its duties hereunder in accordance with the Approved Annual Business Plan; and (ii) use all commercially reasonable efforts to ensure that the actual costs of maintaining and operating the Property do not exceed the operating budget (the "OPERATING PROPERTY BUDGET") which is a part of the Approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged to the proper account on a basis consistent with the Operating Property Budget classifications and Reporting Package. Except in case of emergencies which could reasonably pose a threat of injury to persons or property, in which event Manager shall inform Owner of such emergency within two (2) business days, no No expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating BudgetProperty Budget except with respect to expenses relating to taxes, insurance or utilities or expenditures required due to emergencies that threaten life or property or could result in civil or criminal liability for Owner or Manager. In additionManager makes no guaranty, Manager shall obtain Owner's prior approval for warranty or representation whatsoever in connection with the accuracy of any expenditure in excess Property Budget or the other contents of $5,000, regardless of whether such expenditure is set forth in the Approved Annual Business Plan.
(c) , and Owner acknowledges that they are intended as good faith estimates only. Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 1 contract
Samples: Property Management Agreement (Boston Capital Real Estate Investment Trust Inc)
Annual Business Plan. (a) On or before November 15th December 1 of each year calendar year, or such other date agreed to by Owner and Manager, during the term of this Agreement, Manager shall prepare and submit to Owner for Owner's prior approval ’s approval, an annual business “Annual Business Plan” for the Project for the promotion, leasing, operations, repair and leasing plan maintenance of the Project for each calendar year during which this Agreement is in accordance with the requirements of EXHIBIT D hereto (as such EXHIBIT D may be modified by Owner from time to time) (the "ANNUAL BUSINESS PLAN")effect. The Annual Business Plan shall be include a comprehensive detailed budget of projected income and expenses for the Project for such calendar year (the “Operating Budget”) and a detailed budget of projected capital improvements for the Project for such calendar year (the “Capital Budget”). Within 30 days following the purchase of a Project by Owner, after the approval of the Annual Business Plan for such calendar year, Manager shall prepare and submit to Owner a comparable business plan for such Project and Manager and Owner must follow the management, operation, leasing, repair, maintenance and promotion of the Property and for the other matters procedure set forth on EXHIBIT D. in (b) below with respect to approving any such additional business plan.
(b) Manager shall consult the meet with Owner concerning to discuss the proposed Annual Business Plan and Owner shall promptly incorporate therein such changes as Owner may direct. The notify Manager with respect to the approval or disapproval of the proposed Annual Business Plan within 20 days following the receipt of the Annual Business Plan. Any notice which disapproves a proposed Annual Business Plan must contain specific objections in reasonable detail. If Owner fails to provide approval of a proposed Annual Business Plan within such 20 day period, and all budgets contained therein, the proposed Annual Business Plan shall be deemed to be disapproved and the Annual Business Plan in effect for the previous calendar year shall remain in effect until Owner approves a form consistent new Annual Business Plan for such Project. Owner acknowledges that the Operating Budget is intended only to be a reasonable estimate of the Project’s income and expenses for the ensuing calendar year. Manager shall not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the Reporting PackageOperating Budget.
(bc) Manager shall: may revise the Operating Budget from time to time, as necessary, to reflect any unpredicted significant changes, variables or events or to include significant additional, unanticipated items of revenue and expense. Any such revision shall be subject to the prior written approval of Owner.
(id) perform its duties hereunder in accordance with the Approved Annual Business Plan; Manager agrees to use diligence and (ii) use to employ all reasonable efforts to ensure that the actual costs of maintaining and operating the Property do Project shall not exceed the operating budget (the "OPERATING BUDGET") Operating Budget which is a part of the Approved approved Annual Business Plan either in total or in any one accounting category. All actual expenses must be charged Any expense causing or likely to the proper account cause a variance of greater than ten percent (10%) or $10,000, whichever is greater, in any one accounting category on a cumulative year-to-date basis consistent with shall be promptly explained to Owner by Manager in the Operating Budget classifications and Reporting Packagenext monthly report submitted by Manager to Owner under Section 3.13(a) below. Except in case of emergencies which could reasonably pose a threat of injury to persons or propertyDuring the calendar year, in which event Manager shall inform Owner of such emergency within two (2) business daysany major increases or decreases in costs, no expense may be reclassified except as needed to correct an inadvertent error. Manager will secure Owner's prior approval for any expenditure expenses, and income that will result in a variance of the greater of $5,000 or 5% of the annual budgeted amount in any one accounting line item of the Operating Budget. In addition, Manager shall obtain Owner's prior approval for any expenditure in excess of $5,000, regardless of whether such expenditure is set forth were not reflected in the Approved Annual Business Plan.
(c) Owner shall have the right to require changes in the Approved Annual Business Plan from time to time; provided, however, that Owner shall provide Manager with at least fifteen (15) days' notice of such changes.
Appears in 1 contract
Samples: Property Management Agreement (Adaptive Real Estate Income Trust, Inc.)