Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 and then annually thereafter, the Borrower shall submit to the Administrative Agent an annual budget for each Project (each an “Annual Budget”), in form and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Trigger Period.
Appears in 7 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Operating Plan and Budget. No less than forty-five (a45) Commencing with days in advance of the budget for the calendar year 2006 and then annually thereafterbeginning of each Operating Year, the Borrower will cause its Subsidiaries to adopt an operating plan and a budget of Operation and Maintenance Expenses for the ensuing Operating Year. Such operating plan and budget for an Operating Year is herein called an “Operating Budget.” Copies of the proposed Operating Budget for each period shall submit be submitted at least forty-five (45) days before final adoption thereof to the Administrative Agent an annual budget for each Project (each an “Annual Budget”)Agent, in form and substance reasonably satisfactory to no Operating Budget shall be adopted without the prior written approval of the Administrative Agent setting forth and the Required Lenders (in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together consultation with the annual financial statement for the preceding year pursuant to Section 8.01(aIndependent Engineer). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold indicate in writing its approval (together with that of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%Required Lenders), disapproval or modifications to the Operating Budget within twenty (20) days upon receipt of such Operating Budget. In the event that the prior written approval of the Administrative Agent shall have and the right Required Lenders for a proposed Operating Budget is not obtained prior to require the Borrower first day of the Operating Year to submit for its approval a revised Annual which such proposed Operating Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunderrelates, the Administrative Agent shall advise respective Subsidiary may continue to operate the Borrower Project in accordance with the Operating Budget then in effect with the budgeted cost of each budget item being increased to the lesser of (i) the amount therefor in the proposed Operating Budget or (ii) one hundred and two and one-half percent (102.5%) of the amount of the budgeted cost of such objections within fifteen (15) Business Days after receipt thereof (and deliver to budget item in the Borrower a reasonably detailed description current Operating Budget. Copies of such objections), and the Borrower final Operating Budget so adopted shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same be furnished to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (distributed to the extent Lenders) promptly upon the adoption thereof; provided that such approval if the initial Operating Budget for any Plant or the Project is required hereunder) not approved by the Administrative Agent administrative agent under the Senior Credit Agreement, the Borrower shall cause its Subsidiaries to operate such Plant or the Project in accordance with terms hereof, the Base Case Projections (as well defined in the Senior Credit Agreement) as of the budget for the current calendar year Closing Date (or any update thereof that has been approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate administrative agent under the terms Senior Credit Agreement) with the budgeted cost of each budget item being no greater than one hundred and two and one-half percent (102.5%) of the amount of the budgeted cost of such budget item in such Base Case Projections until an Approved Annual initial Operating Budget during any period other than a Low DSCR Trigger Periodis approved.
Appears in 1 contract
Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 and then annually thereafter, the The Borrower shall will submit to the Administrative Agent an annual budget Subordinated Lender for each Project (each an “Annual Budget”)approval, in form such approval not to be unreasonably withheld or delayed, a proposed Operating Plan and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions next calendar year and a forecast of the operating profit of the Project for the next three (3) calendar year in which years. Each proposed Operating Plan and Budget shall be subject to the reasonable approval of Subordinated Lender. Failure by the Subordinated Lender to approve or disapprove such Low DSCR Trigger Period occurs following proposed Operating Plan and Budget within sixty (60) days after receipt thereof shall be deemed to be an approval by the commencement Subordinated Lender of such Low DSCR Trigger Period)proposed Operating Plan and Budget as the final Operating Plan and Budget. Within fifty (50) days following In the end of any calendar quarter which comprises event that the Subordinated Lender disapproves Borrower’s proposed Operating Plan and Budget within the time period specified above, until a Low DSCR Trigger Periodnew Operating Plan and Budget is agreed by Borrower and the Subordinated Lender, the Borrower shall deliver operate and maintain the Project, or cause the Project to the Administrative Agent be operated and maintained, within amounts for its approval the Annual any Budget Category not to exceed 110% (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with on a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval date basis) of the Annual Budget (amounts budgeted therefor as set forth in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual then current Operating Plan and Budget as required hereunderpreviously approved or deemed approved by Subordinated Lender; provided, howeverthat (i) expenditures for corn and other feedstocks, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%)natural gas, the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review denaturant and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent other items dependent on the Closing Date, operation of the Project shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply adjusted for purposes of this Section 8.16; provided 5.1(g) to the extent the actual operation of the Project differs from that assumed in the then applicable Operating Plan and Budget, and to the extent that prices paid for such Approved Annual Budget items differ from those assumed in the then applicable Operating Plan and Budget, (ii) expenditures under any Major Project Documents shall be adjusted increased by the amount of any cost adjustments provided in such Major Project Documents, and (iii) Borrower may propose an amendment to reflect actual increases the then current Operating Plan and Budget for Subordinated Lender’s approval (which proposal the Subordinated Lender shall consider in real estate taxesgood faith) if at any time Borrower cannot reasonably maintain, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoingusing its best efforts, the Administrative Agent amounts for any Budget Category within the 110% limitations for such year. Borrower will have the right to revise any Operating Plan and Budget from time-to-time with the Lenders acknowledge that prior written approval of the Borrower is Subordinated Lender, which will not required to operate under be unreasonably withheld or delayed. Once approved by the terms of Subordinated Lender, an Approved Annual Operating Plan and Budget during any period other than or a Low DSCR Trigger Periodrevised Operating Plan and Budget will supersede all prior Operating Plans and Budgets and will continue in effect until a subsequent Operating Plan and Budget has been approved by the Subordinated Lender.
Appears in 1 contract
Samples: Subordinated Debt Financing Agreement (Panda Ethanol, Inc.)
Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 2012 and then annually thereafter, the Borrower shall submit to the Administrative Agent an annual budget for each Project (each an “Annual Budget”), in form and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 2011 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Cash Trap Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Cash Trap Trigger Period occurs following after the commencement of such Low DSCR Cash Trap Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Cash Trap Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Cash Trap Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Cash Trap Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Cash Trap Trigger Period.
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 2011 and then annually thereafter, the Borrower shall submit to the Administrative Agent an annual budget for each Project (each an “Annual Budget”), in form and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 2010 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Cash Trap Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Cash Trap Trigger Period occurs following after the commencement of such Low DSCR Cash Trap Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Cash Trap Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Cash Trap Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Cash Trap Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Cash Trap Trigger Period.
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 2009 and then annually thereafter, the Borrower shall submit to the Administrative Agent an annual budget for each Project (each an “Annual Budget”), in form and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 2008 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Trigger Period.
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Operating Plan and Budget. Not later than sixty (a60) Commencing with days prior to the budget for the calendar Completion Date, and not later than November 1 of each year 2006 and then annually thereafter, the Borrower shall will submit to the Administrative Agent an annual budget for each approval, such approval not to be unreasonably withheld or delayed, a proposed Operating Plan and Budget for the next calendar year and a forecast of the operating profit of the Project for the next three (each an “Annual Budget”), 3) calendar years. Each proposed Operating Plan and Budget shall be subject to the reasonable approval of Administrative Agent acting in form and substance reasonably satisfactory to consultation with the Engineer. Failure by the Administrative Agent setting forth in detail budgeted monthly to approve or disapprove such proposed Operating Income Plan and monthly Operating Expenses for each such Project Budget within sixty (which may be in the form of the calendar year 2005 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year 60) days after receipt thereof shall be delivered together with the annual financial statement for the preceding year pursuant deemed to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and be an approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (proposed Operating Plan and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual final Operating Plan and Budget). Each such Annual Budget submitted to and (to In the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time event that the Administrative Agent has disapproves Borrower’s proposed Operating Plan and Budget within the time period specified above, until a new Operating Plan and Budget is agreed by Borrower and the Administrative Agent, Borrower shall operate and maintain the Project, or cause the Project to be operated and maintained, within amounts for any Budget Category not to exceed 110% (on a year-to-date basis) of the amounts budgeted therefor as set forth in the then current Operating Plan and Budget as previously approved a proposed Annual Budget or deemed approved by Administrative Agent; provided, that (i) expenditures for which its approval is required hereundercorn and other feedstocks, natural gas, denaturant and other items dependent on the most recently Approved Annual Budget operation of the Project shall apply be adjusted for purposes of this Section 8.16; provided 5.1(g) to the extent the actual operation of the Project differs from that assumed in the then applicable Operating Plan and Budget, and to the extent that prices paid for such Approved Annual Budget items differ from those assumed in the then applicable Operating Plan and Budget, (ii) expenditures under any Major Project Documents shall be adjusted increased by the amount of any cost adjustments provided in such Major Project Documents, and (iii) Borrower may propose an amendment to reflect actual increases the then current Operating Plan and Budget for Administrative Agent’s approval (which proposal Administrative Agent shall consider in real estate taxesgood faith) if at any time Borrower cannot reasonably maintain, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoingusing its best efforts, the amounts for any Budget Category within the 110% limitations for such year. Borrower will have the right to revise any Operating Plan and Budget from time-to-time with the prior written approval of the Administrative Agent Agent, which will not be unreasonably withheld or delayed. Once approved by the Administrative Agent, an Operating Plan and Budget or a revised Operating Plan and Budget will supersede all prior Operating Plans and Budgets and will continue in effect until a subsequent Operating Plan and Budget has been approved by the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Trigger PeriodAdministrative Agent.
Appears in 1 contract
Operating Plan and Budget. (a) Commencing with the budget for the calendar year 2006 2008 and then annually thereafter, the Borrower shall submit to the Administrative Agent an annual budget for each Project (each an “Annual Budget”), in form and substance reasonably satisfactory to the Administrative Agent setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Project (which may be in the form of the calendar year 2005 2008 budget for each Project provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger Period, the Borrower shall deliver to the Administrative Agent for its approval the Annual Budget (in the format as described above) for the calendar year in which such Low DSCR Trigger Period occurs (together with a reconciliation to that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate under the terms of an Approved Annual Budget during any period other than a Low DSCR Trigger Period.
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Operating Plan and Budget. (a) Commencing with No less than forty-five (45) days prior to the budget target date for the calendar year 2006 and then annually thereafteroccurrence of the initial Commercial Operation Date, the Borrower shall submit adopt and cause its Subsidiaries to adopt an operating plan and a budget of Project Revenues (as defined in the Senior Credit Agreement) and Operation and Maintenance Expenses for the period from such date to the Administrative Agent end of the first Operating Year, and, no less than forty-five (45) days in advance of the beginning of each Operating Year thereafter, it will similarly adopt and cause its Subsidiaries to adopt an annual operating plan and a budget of Operation and Maintenance Expenses for the ensuing Operating Year. Such operating plan and budget for each Project (each an Operating Year is herein called an “Annual Operating Budget”), in form and substance reasonably satisfactory . Copies of the proposed Operating Budget for each period shall be submitted at least forty-five (45) days before final adoption thereof to the Administrative Agent setting forth in detail budgeted monthly Agent, and no Operating Income and monthly Operating Expenses for each such Project (which may Budget shall be in adopted without the form prior written approval of the calendar year 2005 budget for each Project provided Agent (in consultation with the Independent Engineer). The Agent shall indicate in writing its approval, disapproval or modifications to the Administrative Operating Budget within twenty (20) days upon receipt of such Operating Budget. In the event that the prior written approval of the Agent for a proposed Operating Budget is not obtained prior to the Closing Date)first day of the Operating Year to which such proposed Operating Budget relates, the Borrowers may continue to operate the Project in accordance with the Operating Budget then in effect with the budgeted cost of each budget item being increased to the lesser of (i) the amount therefor in the proposed Operating Budget or (ii) one hundred and two and one-half percent (102.5%) of the amount of the budgeted cost of such budget item in the current Operating Budget. The Annual Copies of the final Operating Budget so adopted shall be furnished to the Agent promptly upon the adoption thereof; provided that if the initial Operating Budget for each year shall be delivered together with any Plant or the annual financial statement for Project is not approved by the preceding year pursuant to Section 8.01(a). During any Low DSCR Trigger Period but not otherwise, administrative agent under the Administrative Agent shall have the right to approve such Annual Budget (including, without limitation, the Annual Budget for the portions of the calendar year in which such Low DSCR Trigger Period occurs following after the commencement of such Low DSCR Trigger Period). Within fifty (50) days following the end of any calendar quarter which comprises a Low DSCR Trigger PeriodSenior Credit Agreement, the Borrower shall deliver cause its Subsidiaries to operate such Plant or the Administrative Agent for its approval Project in accordance with the Annual Budget Base Case Projections (as defined in the format Senior Credit Agreement) as described above) for of the calendar year in which such Low DSCR Trigger Period occurs Closing Date (together with a reconciliation to or any update thereof that Annual Budget of actual revenues and expenses year-to-date), and shall thereafter deliver to Administrative Agent for its approval the Annual Budget (in the format as described above) proposed by the Borrower for the succeeding calendar year, by no later than the November 15 preceding such calendar year. The Administrative Agent shall not unreasonably withhold its approval of any Annual Budget as required hereunder; provided, however, that if during any Low DSCR Trigger Period the actual monthly Operating Expenses exceed budgeted Operating Expenses in any month during any period by more than ten percent (10%), the Administrative Agent shall have the right to require the Borrower to submit for its approval a revised Annual Budget for review and approval by the Administrative Agent in its sole discretion. If the Administrative Agent objects to any proposed Annual Budget for which approval is required hereunder, the Administrative Agent shall advise the Borrower of such objections within fifteen (15) Business Days after receipt thereof (and deliver to the Borrower a reasonably detailed description of such objections), and the Borrower shall within five (5) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to the Administrative Agent (such procedure to be repeated until such time as the Administrative Agent shall approve such Annual Budget). Each such Annual Budget submitted to and (to the extent that such approval is required hereunder) has been approved by the Administrative Agent in accordance with terms hereof, as well as the budget for the current calendar year approved by the Administrative Agent on the Closing Date, shall hereinafter be referred to as an “Approved Annual Budget”. Until such time that the Administrative Agent has approved a proposed Annual Budget for which its approval is required hereunder, the most recently Approved Annual Budget shall apply for purposes of this Section 8.16; provided that such Approved Annual Budget shall be adjusted to reflect actual increases in real estate taxes, insurance premiums, utilities expenses and other fixed costs and shall otherwise be adjusted to reflect any change during the preceding year in the Consumer Price Index. Notwithstanding the foregoing, the Administrative Agent and the Lenders acknowledge that the Borrower is not required to operate administrative agent under the terms Senior Credit Agreement) with the budgeted cost of each budget item being no greater than one hundred and two and one-half percent (102.5%) of the amount of the budgeted cost of such budget item in such Base Case Projections until an Approved Annual initial Operating Budget during any period other than a Low DSCR Trigger Periodis approved.
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