Common use of Business Plan and Annual Budget Clause in Contracts

Business Plan and Annual Budget. (a) At the January 11, 1996 meeting of the Partnership Board, the Partners adopted by Unanimous Partner Vote (i) a business plan ("Business Plan") of the Partnership and its Subsidiaries covering the Fiscal Year ending December 31, 1996 and the succeeding Fiscal Years through the Fiscal Year ending December 31, 1999, which the Partners hereby agree is the "Initial Business Plan" for all purposes under this Agreement, and (ii) the Annual Budget for the Fiscal Year ending December 31, 1996. The Partners contemplate the Partnership's achieving a capital structure in which debt (including Partner Loans) represents an equal or greater proportion of the Partnership's total capitalization than the aggregate Original Capital Contributions and Additional Capital Contributions and, unless otherwise approved by Required Majority Vote, the first Proposed Business Plan presented to the Partnership Board for approval subsequent to the Initial Business Plan will set forth the means by which the Partnership proposes to achieve such capital structure. (b) Nothing contained in the Initial Business Plan (or any subsequent Business Plan) shall be binding upon the Partners or the Partnership, except to the extent specifically set forth in the applicable provisions of this Agreement. Notwithstanding anything to the contrary set forth in the Initial Business Plan (or any subsequent Business Plan) or this Agreement, in the event of any conflict or inconsistency between the Initial Business Plan (or any subsequent Business Plan) and this Agreement, such conflict or inconsistency shall be resolved in favor of the applicable terms and provisions of this Agreement to the extent required to give full effect to such applicable terms and provisions. For example, by voting to approve the Initial Business Plan (or any subsequent Business Plan), a Partner will not have thereby agreed that any assumption or set of assumptions contained in the Initial Business Plan (or any subsequent Business Plan) (i) is the basis for any agreement by or among the Partners and/or the Partnership (or any of their respective Affiliates), (ii) cannot be changed (to the extent any such change would not thereby become inconsistent with the applicable terms and provisions of this Agreement), or (iii) is binding with respect to any transaction or other course of dealing or otherwise between the Partnership and such Partner or between or among any of the Partners other than as specifically set forth in this Agreement. (c) The Chief Executive Officer shall submit annually to the Partnership Board at least ninety (90) days prior to the start of each Fiscal Year after the Fiscal Year ending December 31, 1996, (i) a proposed capital expenditure and operating budget (the "Proposed Budget") for the forthcoming Fiscal Year including an income statement prepared on an accrual basis which shall show in reasonable detail the revenues and expenses projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and a cash flow statement which shall show in reasonable detail the receipts and disbursements projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and the amount of any corresponding cash deficiency or surplus, and the projected Additional Capital Contributions, if any, and any contemplated borrowings of the Partnership and its Subsidiaries and (ii) a proposed revised Business Plan ("Proposed Business Plan") for the Fiscal Year covered by the Proposed Budget and the succeeding four Fiscal Years. Such Proposed Budget and Proposed Business Plan shall be prepared on a basis consistent with the Partnership's audited financial statements. If such Proposed Budget or such Proposed Business Plan is approved by the Partnership Board, then such Proposed Budget or such Proposed Business Plan, as the case may be, shall be considered approved and shall constitute the "Annual Budget" or the "Approved Business Plan," as the case may be, for all purposes of this Agreement and shall supersede any previously approved Annual Budget or Approved Business Plan, as the case may be. Except as provided in Schedule 5.1(k), the approval of each Proposed Budget and Proposed Business Plan and action by the Partnership or any of its Subsidiaries constituting any material deviation from any Annual Budget or Approved Business Plan shall require the Required Majority Vote of the Partnership Board. No Approved Business Plan or Annual Budget shall be inconsistent with the provisions of this Agreement, nor shall this Agreement be deemed amended by any provision of an Approved Business Plan or Annual Budget. If a Proposed Budget or Proposed Business Plan is not approved by the Required Majority Vote of the Partnership Board, then the General Partners shall cause their Representatives to cooperate in good faith and confer with the Chief Executive Officer and other senior officers of the Partnership for the purpose of attempting to arrive at a Proposed Budget or Proposed Business Plan, as the case may be, that can secure the approval of the Partnership Board. (d) If, notwithstanding the foregoing procedures, on January 1 of any Fiscal Year no Proposed Budget has been approved by the Partnership Board for such Fiscal Year, then the Annual Budget for the prior Fiscal Year, adjusted (without duplication) to reflect increases or decreases resulting from the following events, shall govern until such time as the Partnership Board approves a new Proposed Budget: (i) the operation of escalation or de-escalation provisions in contracts in effect at the time of approval of the prior Fiscal Year's Annual Budget solely as a result of the passage of time or the occurrence of events beyond the control of the Partnership to the extent such contracts are still in effect; (ii) elections made in any prior Fiscal Year under contracts contemplated by the Annual Budget for the prior Fiscal Year regardless of which party to such contracts made such elections; (iii) increases or decreases in expenses attributable to the annualized effect of employee additions or reductions during the prior Fiscal Year contemplated by the Annual Budget for the prior Fiscal Year; (iv) changes in interest expense attributable to any loans made to or retired by the Partnership or its Subsidiaries (including Partner Loans); (v) increases in overhead expenses in an amount equal to the total of overhead expenses reflected in the Annual Budget for the prior Fiscal Year multiplied by the increase in the Consumer Price Index for the prior year, but in no event more than five percent (5%); (vi) the anticipated incurrence of costs during such Fiscal Year for any legal, accounting and other professional fees or disbursements in connection with events or changes not contemplated at the time of preparation of the Proposed Budget for the prior Fiscal Year; (vii) the continuation of the effects of a decision made by the Partnership Board or the Partners in the prior Fiscal Year with respect to any of the matters referred to on Schedules 5.1(j), 5.1(k) or 5.1(l) that are not reflected in the Annual Budget for the prior Fiscal Year; and (viii) decreases in expense attributable to non-recurring items reflected in the prior Fiscal Year's Annual Budget. Any budget established pursuant to this Section 5.2(d) is herein referred to as a "Default Budget." (e) If a Proposed Business Plan is submitted for approval pursuant to this Section 5.2 and is not approved by the requisite vote of the Partnership Board, the Business Plan most recently approved by the Partnership Board pursuant to Section 5.2(c) shall remain in effect as the Approved Business Plan; provided, that, if a Proposed Budget is approved pursuant to Section 5.2(c) (and the corresponding Proposed Business Plan is not so approved), the Approved Business Plan then in effect shall be deemed to be amended so that the Fiscal Year therein corresponding to the Fiscal Year for which such Annual Budget has been approved shall be consistent with such Annual Budget. (f) The day-to-day business and operations of the Partnership and its Subsidiaries shall be conducted in accordance with the Approved Business Plan and the Annual Budget (or Default Budget) then in effect and the policies, strategies and standards established by the Partnership Board. The Partnership Board and the officers and employees of the Partnership and its Subsidiaries shall implement the Annual Budget and Approved Business Plan.

Business Plan and Annual Budget. (a) At Managing Member shall prepare and submit (or cause to be prepared and submitted) to the January 11Preferred Member, 1996 meeting not later than October 31 of each calendar year, for its review and approval (such approval not to be unreasonably withheld, delayed or conditioned), a proposed Business Plan (including a proposed Annual Budget) for the Property for the following calendar year. The Preferred Member shall have ten (10) days after receipt of any such Business Plan to approve or disapprove of it in writing. Each request for an approval to the Business Plan (or for any variance from the Annual Budget, as described in Section 4.3(b) below) shall be submitted with a written notice that requests such approval and states clearly (in bold face, 14-point type or larger): “THIS IS A REQUEST FOR APPROVAL OF AN ANNUAL BUDGET AND BUSINESS PLAN AND APPROVAL WILL BE DEEMED GIVEN IF PREFERRED MEMBER DOES NOT RESPOND WITHIN TEN (10) DAYS”. If the Preferred Member does not indicate either approval or disapproval of such Annual Budget and Business Plan (with reasonable detail setting forth the basis for such disapproval, in the case of any disapproval) within ten (10) days after receipt of such Annual Budget, and provided that the request for such approval shall have been in the format described in the immediately preceding sentence, then the approval of the Partnership BoardPreferred Member shall be conclusively presumed; provided that from and after the Outside Redemption Date, failure to respond shall be deemed a disapproval by Preferred Member. If the Preferred Member disapproves of such Annual Budget, the Partners adopted by Unanimous Partner Vote terms of the preceding year’s Annual Budget (adjusted (i) a business plan to reflect actual ("Business Plan"rather than budgeted) of the Partnership expenses for such prior year and its Subsidiaries covering the Fiscal Year ending December 31, 1996 and the succeeding Fiscal Years through the Fiscal Year ending December 31, 1999, which the Partners hereby agree is the "Initial Business Plan" for all purposes under this Agreementactual increases in Uncontrollable Expenses, and (ii) the to exclude any extraordinary one-time items) shall continue to govern until a new Annual Budget for is approved (or deemed approved), and shall be sent to the Fiscal Year ending December 31, 1996. The Partners contemplate the Partnership's achieving a capital structure in which debt (including Partner Loans) represents an equal or greater proportion holders of the Partnership's total capitalization than the aggregate Original Capital Contributions and Additional Capital Contributions and, unless otherwise approved by Required Majority Vote, the first Proposed Business Plan presented to the Partnership Board Senior Facilities for approval subsequent to the Initial Business Plan will set forth the means by which the Partnership proposes to achieve such capital structureapproval. (b) Nothing contained in the Initial Business Plan (or After any subsequent Business Plan) shall be binding upon the Partners or the Partnership, except to the extent specifically set forth in the applicable provisions of this Agreement. Notwithstanding anything to the contrary set forth in the Initial Business Plan (or any subsequent Business Plan) or this Agreement, in the event of any conflict or inconsistency between the Initial Business Plan (or any subsequent Business Plan) and this Agreement, such conflict or inconsistency shall be resolved in favor of the applicable terms and provisions of this Agreement to the extent required to give full effect to such applicable terms and provisions. For example, by voting to approve the Initial Business Plan (or any subsequent Business Plan), a Partner will not have thereby agreed that any assumption or set of assumptions contained in the Initial Business Plan (or any subsequent Business Plan) (i) is the basis for any agreement by or among the Partners and/or the Partnership (or any of their respective Affiliates), (ii) cannot be changed (to the extent any such change would not thereby become inconsistent with the applicable terms and provisions of this Agreement), or (iii) is binding with respect to any transaction or other course of dealing or otherwise between the Partnership and such Partner or between or among any of the Partners other than as specifically set forth in this Agreement. (c) The Chief Executive Officer shall submit annually to the Partnership Board at least ninety (90) days prior to the start of each Fiscal Year after the Fiscal Year ending December 31, 1996, (i) a proposed capital expenditure and operating budget (the "Proposed Budget") for the forthcoming Fiscal Year including an income statement prepared on an accrual basis which shall show in reasonable detail the revenues and expenses projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and a cash flow statement which shall show in reasonable detail the receipts and disbursements projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and the amount of any corresponding cash deficiency or surplus, and the projected Additional Capital Contributions, if any, and any contemplated borrowings of the Partnership and its Subsidiaries and (ii) a proposed revised Business Plan ("Proposed Business Plan") for the Fiscal Year covered by the Proposed Annual Budget and the succeeding four Fiscal Years. Such Proposed Budget and Proposed Business Plan shall be prepared on a basis consistent with the Partnership's audited financial statements. If such Proposed Budget or such Proposed Business Plan is approved by the Partnership BoardPreferred Member, then such Proposed Budget or such Proposed Business Plan, as the case may be, Managing Member shall be considered approved and shall constitute the "Annual Budget" not permit itself or the "Approved Business Plan," as the case may be, for all purposes of this Agreement and shall supersede any previously approved Annual Budget or Approved Business Plan, as the case may be. Except as provided in Schedule 5.1(k), the approval of each Proposed Budget and Proposed Business Plan and action by the Partnership Company or any Subsidiary to (a) incur expenses (capital or other) for any semi-annual period which cause total expenses of its Subsidiaries constituting any material deviation from any Annual Budget or Approved Business Plan shall require the Required Majority Vote all types to exceed 110% of the Partnership Board. No Approved Business Plan or Annual Budget shall be inconsistent with the provisions of this Agreement, nor shall this Agreement be deemed amended by any provision of an Approved Business Plan or Annual Budget. If a Proposed Budget or Proposed Business Plan is not approved by the Required Majority Vote of the Partnership Board, then the General Partners shall cause their Representatives to cooperate in good faith and confer with the Chief Executive Officer and other senior officers of the Partnership for the purpose of attempting to arrive at a Proposed Budget or Proposed Business Plan, as the case may be, that can secure the approval of the Partnership Board. (d) If, notwithstanding the foregoing procedures, on January 1 of any Fiscal Year no Proposed Budget has been approved by the Partnership Board for such Fiscal Year, then the Annual Budget for the prior Fiscal Year, adjusted (without duplication) to reflect increases or decreases resulting from the following events, shall govern until such time as the Partnership Board approves a new Proposed Budget: (i) the operation of escalation or de-escalation provisions in contracts in effect at the time of approval of the prior Fiscal Year's Annual Budget solely as a result of the passage of time or the occurrence of events beyond the control of the Partnership to the extent such contracts are still in effect; (ii) elections made in any prior Fiscal Year under contracts contemplated by the Annual Budget for the prior Fiscal Year regardless of which party to such contracts made such elections; (iii) increases or decreases in expenses attributable to the annualized effect of employee additions or reductions during the prior Fiscal Year contemplated by the Annual Budget for the prior Fiscal Year; (iv) changes in interest expense attributable to any loans made to or retired by the Partnership or its Subsidiaries (including Partner Loans); (v) increases in overhead expenses in an amount equal to the total of overhead expenses reflected budgeted therefor in the Annual Budget for the prior Fiscal Year multiplied applicable semi-annual period (unless such expense is an RFR Fully Funded Expense or is for an Uncontrollable Expense), without first providing notice of such variance to the Preferred Member and receiving written approval of such variance from the Preferred Member, which approval may not be unreasonably withheld or delayed by the increase in Preferred Member. If the Consumer Price Index for the prior year, but in no event more than five percent (5%); (vi) the anticipated incurrence of costs during such Fiscal Year for any legal, accounting and other professional fees Preferred Member does not indicate either approval or disbursements in connection with events or changes not contemplated at the time of preparation disapproval of the Proposed Budget for the prior Fiscal Year; (vii) the continuation of the effects of a decision made by the Partnership Board or the Partners in the prior Fiscal Year with respect to any of the matters referred to on Schedules 5.1(j), 5.1(k) or 5.1(l) that are not reflected in the Annual Budget for the prior Fiscal Year; and (viii) decreases in expense attributable to non-recurring items reflected in the prior Fiscal Year's Annual Budget. Any budget established pursuant to this Section 5.2(d) is herein referred to as a "Default Budget." (e) If a Proposed Business Plan is submitted for approval pursuant to this Section 5.2 and is not approved by the requisite vote of the Partnership Board, the Business Plan most recently approved by the Partnership Board pursuant to Section 5.2(c) shall remain in effect as the Approved Business Plan; provided, that, if a Proposed Budget is approved pursuant to Section 5.2(c) (and the corresponding Proposed Business Plan is not so approved), the Approved Business Plan then in effect shall be deemed to be amended so that the Fiscal Year therein corresponding to the Fiscal Year for which such Annual Budget has been approved shall be consistent with such Annual Budget. (f) The day-to-day business and operations of the Partnership and its Subsidiaries shall be conducted in accordance with the Approved Business Plan and the Annual Budget (or Default Budget) then in effect and the policies, strategies and standards established by the Partnership Board. The Partnership Board and the officers and employees of the Partnership and its Subsidiaries shall implement the Annual Budget and Approved Business Plan.variance within ten

Business Plan and Annual Budget. (a) At the January 11, 1996 meeting of the Partnership Board, the Partners adopted by Unanimous Partner Vote (i) a business plan ("Business Plan") of the Partnership and its Subsidiaries covering the Fiscal Year ending December 31, 1996 and the succeeding Fiscal Years through the Fiscal Year ending December 31, 1999, which the Partners hereby agree is the "Initial Business Plan" for all purposes under this Agreement, and (ii) the Annual Budget for the Fiscal Year ending December 31, 1996. The Partners contemplate the Partnership's achieving a capital structure in which debt (including Partner Loans) represents an equal or greater proportion of the Partnership's total capitalization than the aggregate Original Capital Contributions and Additional Capital Contributions and, unless otherwise approved by Required Majority Vote, the first Proposed Business Plan presented to the Partnership Board for approval subsequent to the Initial Business Plan will set forth the means by which the Partnership proposes to achieve such capital structure. (b) Nothing contained in the Initial Business Plan (or any subsequent Business Plan) shall be binding upon the Partners or the Partnership, except to the extent specifically set forth in the applicable provisions of this Agreement. Notwithstanding anything to the contrary set forth in the Initial Business Plan (or any subsequent Business Plan) or this Agreement, in the event of any conflict or inconsistency between the Initial Business Plan (or any subsequent Business Plan) and this Agreement, such conflict or inconsistency shall be resolved in favor of the applicable terms and provisions of this Agreement to the extent required to give full effect to such applicable terms and provisions. For example, by voting to approve the Initial Business Plan (or any subsequent Business Plan), a Partner will not have thereby agreed that any assumption or set of assumptions contained in the Initial Business Plan (or any subsequent Business Plan) (i) is the basis for any agreement by or among the Partners and/or the Partnership (or any of their respective Affiliates), (ii) cannot be changed (to the extent any such change would not thereby become inconsistent with the applicable terms and provisions of this Agreement), or (iii) is binding with respect to any transaction or other course of dealing or otherwise between the Partnership and such Partner or between or among any of the Partners other than as specifically set forth in this Agreement. (c) The Chief Executive Officer shall submit annually to the Partnership Board at least ninety (90) days prior to the start of each Fiscal Year after the Fiscal Year ending December 31, 1996, (i) a proposed capital expenditure and operating budget (the "Proposed Budget") for the forthcoming Fiscal Year including an income statement prepared on an accrual basis which shall show in reasonable detail the revenues and expenses projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and a cash flow statement which shall show in reasonable detail the receipts and disbursements projected for the business of the Partnership and its Subsidiaries for the forthcoming Fiscal Year and the amount of any corresponding cash deficiency or surplus, and the projected Additional Capital Contributions, if any, and any contemplated borrowings of the Partnership and its Subsidiaries and (ii) a proposed revised Business Plan ("Proposed Business Plan") for the Fiscal Year covered by the Proposed Budget and the succeeding four Fiscal Years. Such Proposed Budget and Proposed Business Plan shall be prepared on a basis consistent with the Partnership's audited financial statements. If such Proposed Budget or such Proposed Business Plan is approved by the Partnership Board, then such Proposed Budget or such Proposed Business Plan, as the case may be, shall be considered approved and shall constitute the "Annual Budget" or the "Approved Business Plan," as the case may be, for all purposes of this Agreement and shall supersede any previously approved Annual Budget or Approved Business Plan, as the case may be. Except as provided in Schedule 5.1(k), the approval of each Proposed Budget and Proposed Business Plan and action by the Partnership or any of its Subsidiaries constituting any material deviation from any Annual Budget or Approved Business Plan shall require the Required Majority Vote of the Partnership Board. No Approved Business Plan or Annual Budget shall be inconsistent with the provisions of this Agreement, nor shall this Agreement be deemed amended by any provision of an Approved Business Plan or Annual Budget. If a Proposed Budget or Proposed Business Plan is not approved by the Required Majority Vote of the Partnership Board, then the General Partners shall cause their Representatives to cooperate in good faith and confer with the Chief Executive Officer and other senior officers of the Partnership for the purpose of attempting to arrive at a Proposed Budget or Proposed Business Plan, as the case may be, that can secure the approval of the Partnership Board.the (d) If, notwithstanding the foregoing procedures, on January 1 of any Fiscal Year no Proposed Budget has been approved by the Partnership Board for such Fiscal Year, then the Annual Budget for the prior Fiscal Year, adjusted (without duplication) to reflect increases or decreases resulting from the following events, shall govern until such time as the Partnership Board approves a new Proposed Budget: (i) the operation of escalation or de-escalation provisions in contracts in effect at the time of approval of the prior Fiscal Year's Annual Budget solely as a result of the passage of time or the occurrence of events beyond the control of the Partnership to the extent such contracts are still in effect; (ii) elections made in any prior Fiscal Year under contracts contemplated by the Annual Budget for the prior Fiscal Year regardless of which party to such contracts made such elections; (iii) increases or decreases in expenses attributable to the annualized effect of employee additions or reductions during the prior Fiscal Year contemplated by the Annual Budget for the prior Fiscal Year; (iv) changes in interest expense attributable to any loans made to or retired by the Partnership or its Subsidiaries (including Partner Loans); (v) increases in overhead expenses in an amount equal to the total of overhead expenses reflected in the Annual Budget for the prior Fiscal Year multiplied by the increase in the Consumer Price Index for the prior year, but in no event more than five percent (5%); (vi) the anticipated incurrence of costs during such Fiscal Year for any legal, accounting and other professional fees or disbursements in connection with events or changes not contemplated at the time of preparation of the Proposed Budget for the prior Fiscal Year; (vii) the continuation of the effects of a decision made by the Partnership Board or the Partners in the prior Fiscal Year with respect to any of the matters referred to on Schedules 5.1(j), 5.1(k) or 5.1(l) that are not reflected in the Annual Budget for the prior Fiscal Year; and (viii) decreases in expense attributable to non-recurring items reflected in the prior Fiscal Year's Annual Budget. Any budget established pursuant to this Section 5.2(d) is herein referred to as a "Default Budget." (e) If a Proposed Business Plan is submitted for approval pursuant to this Section 5.2 and is not approved by the requisite vote of the Partnership Board, the Business Plan most recently approved by the Partnership Board pursuant to Section 5.2(c) shall remain in effect as the Approved Business Plan; provided, that, if a Proposed Budget is approved pursuant to Section 5.2(c) (and the corresponding Proposed Business Plan is not so approved), the Approved Business Plan then in effect shall be deemed to be amended so that the Fiscal Year therein corresponding to the Fiscal Year for which such Annual Budget has been approved shall be consistent with such Annual Budget. (f) The day-to-day business and operations of the Partnership and its Subsidiaries shall be conducted in accordance with the Approved Business Plan and the Annual Budget (or Default Budget) then in effect and the policies, strategies and standards established by the Partnership Board. The Partnership Board and the officers and employees of the Partnership and its Subsidiaries shall implement the Annual Budget and Approved Business Plan.